McMullen Leavens Co.

National Labor Relations Board - Board Decisions

May 31, 1949

83 N.L.R.B. 948 (N.L.R.B. 1949)

In the Matter of MCMULLEN LEAVENS COMPANY 1 and PLAYTHINGS,
JEWELRY AND NOVELTY WORKERS INTERNATIONAL UNION-C. I. O.
Case No. O-CA-239.Decided May 31, 1949
DECISION
AND
ORDER
On October 7, 1948, Trial Examiner David London issued his Inter-
mediate 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. Thereafter the Respondent filed
exceptions and a supporting brief. The Respondent also requested
oral argument. This request is hereby denied because the record,
exceptions and brief, in our opinion, adequately present the issues and
the positions of the parties 2
The Board has reviewed the Trial Examiner's rulings made at the
hearing and finds that no prejudicial error was committed.3 The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in the
1 The Respondent answered and appeared in the proceeding under the name of "McMullen-
Leavens Co., Incorporated " It has since stipulated that its correct name is "McMullen
Leavens Company" and an order amending the title accordingly has been entered.
2 Pursuant to the provisions of Section 3 (b) of the Act, as amended, the N. L. R. B. has
delegated its powers in connection with this proceeding to a three-member panel [Chairman
Herzog and Members Houston and Murdock].
3 The Respondent apparently took the position at the hearing that the record herein
should include all documents and affidavits before the Regional Director upon which the
latter based his findings and decisions in his Report on Objections and Report on Challenges,
which findings and decisions form the background of the unfair labor practice alleged
herein. The issue was presented before the Trial Examiner by assuming the issuance, on
application of the Respondent, of subpenas to the General Counsel, the Regional Director,
and the Board requesting the aforesaid documents and affidavits, and by the General
Counsel thereupon making a motion to quash the subpenas as to all.
The, Trial Examiner granted so much of the motion to quash as related to the General
Counsel and the Regional Director, but reserved ruling as to the part of the motion that
related to the Board. The Respondent takes exception to this ruling. For the reasons
stated hereinafter, we hereby adopt the ruling of the Trial Examiner granting part of
the motion to quash and we also grant the remainder of the motion to quash. It is apparent
that the Respondent does not challenge the genuineness or the accuracy of the statements
and other data gathered in the course of the investigation and adverted to by the Regional
Director in his reports ; its attack is directed, in the main, at the extent of the investigation,
the credibility attached and weight given to the evidence at hand, and the conclusions of law
to be drawn therefrom. In these circumstances, we do not believe that any useful purpose
would be served by the inclusion of more of the Regional Director's supporting documents
than already appear in the instant record.
83 N. L. R. B., No. 138.
948
McMULLEN LEAVENS COMPANY 949
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, with the following additions and modi-
fications.
The Trial Examiner found, and we agree, that the Respondent vio-
lated Section 8 (a) (5) of the Act by refusing on and after January
23, 1948, to bargain collectively with the Union as the exclusive repre-
sentative of the employees in the appropriate unit .4 The Respondent
admits that it refused to bargain with the Union but excepts to the
failure of the Trial- Examiner to find that, under the circumstances of
the case, it was not required to do so. These exceptions will be treated
in more detail herein under two headings, viz, those relating to the
first election and those relating to the second election.
A. Respondent's exceptions to the first election
The exceptions directed to the first consent election relate in general
to the following findings of the Trial Examiner : (1) that the Regional
Director was not arbitrary or capricious in treating the filing and
service of the Union's objections thereto as proper and in processing
such objections, (2) that the Regional Director was not arbitrary or
capricious in the manner in which he conducted the investigation of
these objections, (3) that the Report on Objections is not void for arbi-
trariness in its findings of improper preelection conduct, and (4) that
there was no arbitrariness in the refusal of the Regional Director to
entertain the Respondent's exceptions to his- Report on Objections.
1. As to the manner in which the Union's objections were raised
before the Regional Director and brought to the attention of the
Respondent, the following facts appear : In a letter to the Regional
Director, dated February 26, 1947, copy of which the Respondent
received within the 5-day period for the filing of objections prescribed
by the agreement, the Union alleged that the Respondent committed
acts violative of Section 8 (1) of the Act and had thereby deprived
its employees of a free choice of bargaining representatives. The
letter added that detailed "charges" were being submitted in a sepa-
rate communication. On March 6, 1947, the Regional Director
eceived a supplemental letter from the Union, dated March 1, 1947,
which listed in detail 11 objections to the Respondent's preelection
conduct. No copy of this letter was sent to the Respondent. How-
ever, in a letter dated April 23, 1947, the Regional Director informed
the Respondent of 5 of the Union's original 11 objections, and an-
41n substantial agreement with the Trial Examiner , we find that all production and
maintenance employees at the Keeseville , New York, plant of the Respondent , excluding
foremen, foreladies, and all supervisors , as defined in the amended Act, constitute a unit
appropriate for the purposes of collective bargaining within the meaning of Section 9 (b)
of the Act, as amended.
844340--50-vol. 83-61
950 DECISIONS' OF NATIONAL LABOR- RELATIONS BOARD
nounced that a field examiner would be at the plant the following
week. Following an investigation-of the same 5 objections, the Re-
gional Director on May 20, 1947, issued his Report on Objections set-
ting aside the election -on the basis of 1 of the 5 objections. The
Respondent's contentions in this connection are twofold : that the
Rules and Regulations of the Board are controlling as to the procedure
to be 'followed but the Regional Director arbitrarily ignored them;
and further that it was entitled to ' learn of all the exceptions rather
than only 5 of them and the Regional Director is therefore chargeable
with arbitrary concealment of the nature and number of the objections.
Like the Trial Examiner, we find that the Union's objections to the
election were filed and served in accordance- with the terms of the
agreement, and that the Regional Director,was not arbitrary in proc-
essing these objections. In so doing, we adopt the finding in the
Intermediate Report that, the Union's letter of February 26, standing
alone, constituted adequate notice to the' Respondent of the Unions
objections in the absence of any -requirement in the agreement that the
objections "contain a short statement of the reasons therefor." Nor
do we find error in the Trial Examiner's conclusion that the agree-
mentand not the Rules and Regulations of the Board, is controlling.
We are mindful in this connection that Section 1 of the agreement
states that the election shall be in accordance with the Board's Rules
and customary policies and procedures. However, it is clear that this
reference is of a general nature and that where, as here, Section 5 of
the agreement " covers the situation, the specific provision takes prece-
dence over the general."
Moreover, assuming arguendo, the applicability of our Rules to the
question of adequate notice,' we find no inconsistency herein with our
decisions in Board-directed elections." On the basis of all the facts
recited above pertaining to the communications between the parties
and the Regional Director, it cannot be said that the Respondent was
in any way prejudiced by the procedure followed by the Regional
Director. For it is clear that the Respondent was,not visited by the
field examiner until after it had been fully apprised of the objections
which were being considered by the Regional Director, and the report
itself did not issue until a month later. Nor is there any merit to the
6 Section 5 of the agreement states : "Objections . . . may be filed with the Regional
Director within 5 days after the issuance of the Tally of Ballots . Copies of such objections
must be served upon the other parties."
6 Williston on Contracts , Section 619. -
7 The Respondent cites Section 203.55 of the Board's Rules and Regulations , Series 4,
current at the time of the investigations involved herein, which provided that "The Objec.
tions shall contain a short statement of the reasons therefor."
6 See Matter of Reliance Manufacturing Company of Hattiesburg , Mississippi, 67
N. L. R. B . 515; (there is no basis for the Respondent 's contentions addressed to the
inapplicability of this case to the facts at hand ). Cf Matter of Anderson Manufacturing
Co., 58 N. L. R. B . 1511; Matter of North Amerwan Aviation, Inc., 81 N. L. R. B. 1.
MCMULLEN LEAVENS COMPANY 951
contention that the list of 5 in place of the original 11 objections of
the'Union passed on to the Respondent by the Regional Director 48
days after its receipt, establishes arbitrary or capricious conduct on
the part of the Regional Director. We perceive no prejudice to the
Respondent arising from the fact that the Regional Director elimi-
nated 6 of the original 11 objections.. The Respondent cannot com-
plain because it was confronted with fewer objections and its burden
of defense made that much lighter. We are equally unimpressed by
the Respondent's further contention, based on the speculative utter-
ances by the General Counsel, that the Regional Director was moti-
vated in reaching his conclusions by considerations which do not
appear in his Report on Objections. The Trial Examiner found, and
we concur, that the statements of the General Counsel as to the state
of mind of the Regional Director are wholly irrelevant and that the
report speaks for itself.
2. Insofar as the exceptions relate to the manner in which the Re-
gional Director conducted his investigation, we find, for the reasons
contained in the Intermediate Report, that the Regional Director was
not arbitrary or capricious in this respect .9
3. On the issue of the adequacy of the Regional Director's findings
of improper election conduct by the Respondent, the Respondent con-
tends that the report did not show that "the isolated conversations
with several employees were known to or affected the 110 employees
who voted in the election of February 25, 1947." We find no merit in
this contention. Proof as to the effect of acts of interrogation upon
the employees in an election is not a prerequisite to setting the results
of an election aside ; it is sufficient that such acts are reasonably cal-
culated to have the effect of interfering with a free choice.10 More-
over, assuming arguendo, the isolated character of the acts of interro-
gation, the fact is that the Regional Director was authorized by the
agreement to determine that the commission of such acts was suf-
ficient ground for setting aside the results of the election. And it
cannot be said that his finding is arbitrary or capricious and therefore
warrants our going behind the Regional Director's determination to
reevaluate the evidence so long as there exists, as we find herein, a
ieasonable basis for his findings. Accordingly, in view of the fore-
going and for the reasons given by the Trial Examiner, the findings
of interference with the election are warranted.
4. We find equally without merit the Respondent's remaining con-
tention that the terms of the agreement and our Rules and Regula-
9 With regard to the Regional Director's conduct of the investigation of the challenged
ballots following the second election , we find, in agreement with the Trial Examiner, that
such investigation was complete and adequate for the purpose of ruling on the challenges.
10 Of. Matter of G. H. Hess, Incorporated, 82 N. L R. B , No. 52 ; Matter of Minnesota
Mining tf Manufacturing Company, 81 N. L R. B 557, and cases cited therein.
952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions require that the Regional Director and the Board entertain the
Respondent's exceptions to the Regional Director's Report on Objec-
tions which set aside the results of the first election. The Respondent
admits that the agreement prohibits the filing of exceptions where the
Union has filed "objections to the conduct of the ballot," but argues
that it does not preclude the filing of exceptions to "objections to con-
duct affecting the result of the election," such as were filed by the Union
in the instant case. Section 1 of the agreement sets forth in broad
terms the authority of the Regional Director by providing that his
determination "shall be final and binding upon any question, includ-
ing questions as to the eligibility of voters, raised by any party hereto
relating in any manner to the election" [Italics supplied]. And Sec-
tion 5 of the agreement, specifically authorizes the Regional Director
11o set aside the results of the election and conduct a new election upon
:sustaining objections "to the conduct of the ballot, or to a determ2na-
tion of representatives; based on the results thereof" [Italics supplied.]
This language would appear to be sufficiently broad to encompass not
only objections pertaining to the conduct of the election proper, i. e.,
the management of the balloting process, but also objections bearing
upon the results of the election, i. e., antecedent conduct constituting
unlawful electioneering or interference with the free choice of the
employees in the pending election.
Moreover, this language gains force from the very nature of the
consent election agreement. Thus, the objective of providing for the
procedure of a consent election of the type which does not require a
Board certification is to enable the parties, if they so choose, with the
approval of the Regional Director, to ascertain the uninhibited de-
sires for representation of the employees in an appropriate unit with-
out recourse to the Board at any stage of the proceeding. Implied
in such an agreement is the understanding that should the existence
of the proper laboratory conditions for conducting the test be ques-
tioned, the parties will forego the usual post-election procedure of
filing exceptions with the Board and substitute therefor the Regional
Director's determination as final, thereby expediting a designation
of bargaining representatives.", In keeping with this view, we have
held that we will disturb the Regional Director's determination only
when pertinent to the issues presented in an unfair labor practice
proceeding, and then on the sole ground that the Regional Director's
rulings were arbitrary or capricious.12 And we have held further
u "Its purpose is to guard against disputes concerning the conduct of elections , to provide
for the prompt and final settlement of such controversies as may arise between the parties,
and thus to minimize delay in the administration of the Act." Semi-Steel Casting Co. v.
N. L. R. B., 160 F . ( 2d) 388, 391 (C. A. 8).
12 See Matter of Ferris-Lee Lumber and Mfg . Co., 71 N. L. R. B. 989 ; Matter of Joseph
Sidran, 81 N. L R . B. 270 , Matter of A. J. Tower Company, 60 N. L. R. B. 1414, enf'd
MCMULLEN LEAVENS COMPANY 953
that "In the absence of such conduct we believe ourselves bound by
the terms of the agreement providing for the finality and binding
effect of the Regional Director's determination to the same extent as
a court is bound by an agreement to abide by an arbitrator's award.
To hold otherwise would permit an employer deliberately to ignore
binding commitments embodied in a consent agreement; would open
the door to subterfuges for hampering and delaying a final determina-
tion of a bargaining representative; and would tend to defeat, rather
than to effectuate, the policies of the Act." 13
Nor do the Rules themselves provide, as the Respondent contends,
for the review of the Regional Director's determinations in these cir-
cumstances by the filing of exceptions either with the Regional Direc-
tor or with the Board. In sum, the procedure for the investigation
and determination of representatives by consent election agreement
was contained in Section 203.48 (a) of the Board's Rules and Regula-
tions, Series 4, current at the time of the investigations involved
herein. This section provided, inter alia, that "The method of con-
ducting such consent election shall be consistent with the method fol-
lowed by the Regional Director in conducting elections pursuant to
Sections 203.55 and 203.56, except that the rulings and the determina-
tion by the Regional Director of the results thereof shall be final."
[Emphasis supplied.]
In accord with the Trial Examiner, we find, therefore, that the
Regional Director properly refused to consider the Respondent's
exceptions, and that his ruling in this regard was not arbitrary or
capricious.,-,
B. Respondent's exceptions to the second election
The exceptions directed to the second election relate in general to
the Trial Examiner's findings that the Regional Director was not arbi-
trary (1) in directing a second election, (2) in using the same pay
roll in both elections to fix eligibility to vote, and (3) in concluding
that the Union had won the second election.
1. The Respondent contends that a second election should not have
been held because the agreement was nullified by the fact that it with-
drew therefrom on July 9, 1947, and furthermore no basis existed in
329 U. S. 324 ; Semi-Steel Castling Co . v. N. L. R. B., supra; Matter of Capitol Greyhound
Lines, et al ., 49 N. L. R. B. 156, enf'd 140 F. ( 2d) 754 ( C. A. 6), cert. den . 322 U . S. 763;
Matter of Miehie Printing Press & Manufacturing Co., 58 N. L. R. B. 1134. It is clear there-
fore that the Board will not entertain exceptions to the Regional Director 's report on
objections in a consent election proceeding of this nature.
Is Matter of Capitol Greyhound Dines, et al., supra.
1' Similarly , the Respondent 's contentions with regard to the filing of exceptions to the
Regional Director's Report on Challenges in the second election is found to be without
substance.
954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the agreement for the direction of a second election based on objec-
tions to conduct affecting the results of the first election. The Re-
spondent rests its alleged right to withdraw on its asserted claims of
arbitrariness and capriciousness of the Regional Director in connec-
tion with the first election. Like the Trial Examiner, we have found
no such arbitrariness or capriciousness of the Regional Director.
The Respondent maintains, however, that the agreement was equiva-
lent in legal status to a private agreement to arbitrate, and that under
the arbitration law of New York it was incumbent upon the Regional
Director, following receipt of the Respondent's letter of withdrawal
of July 9, to obtain a ruling from the State court as to whether be
possessed authority to proceed with a second election. But, the Board,
in enforcing national policy, is not bound by local' statutory concep-
tions applicable to a private agreement to arbitrate 16 The agreement,
by its terms, was bottomed upon "the National Labor Relations Act,
the Board's Rules and Regulations, and the customary procedures and
policies of the Board...." Moreover, unlike a private agreement
to arbitrate, the agreement required the approval of the Regional Di-
rector.16 Further, the agreement culminated in the Regional Direc-
tor's determination of representatives, which determination, unless re-
versed by us in an unfair labor practice proceeding, possessed the same
force and effect as a Board certification of representatives. For these
reasons, we reject the Respondent's contention.
Nor is there any basis to the Respondent's argument that the Re-
gional Director had authority under the agreement to order a new
election only if "objections to the conduct of the ballot" were made
and sustained, and not where, as here, "objections to conduct affecting
the results of the election" were made and sustained. We have already
found that no distinction can validly be drawn under the agreement
between the two types of objections to an election. The procedures
which are admittedly proper in one instance must therefore be held
proper in the other.
2. As noted above, the Respondent questions the use of the original
pay roll, i. e., the pay roll of January 3, 1947, to determine voting eli-
gibility in the second election conducted on July 22, 1947. While the
Respondent agrees with the Trial Examiner that the terms of the
agreement control as to the pay-roll date, unlike the Trial Examiner,
it regards Section 1 of the agreement" rather than Sections 2, 5 and
15 Matter of A. J. Tower Company, supra.
16 Section 203.48 (a).
17 Section 1 provides that "Said election shall be held in accordance with the National
Labor Relations Act, the Board 's Rules and Regulations , and the customary procedures
and policies of the Board, provided that the determination of the Regional Director shall
be final and binding upon any question including questions as to the eligibility of voters,
raised by any party hereto relating in any manner to the election."
MCMULLEN LEAVENS COMPANY 955
0, relied upon by the Trial Examiner, as dispositive of the issue, and
argues therefrom that the Regional Director was bound to follow
Board policy in directed elections and employ a current pay-roll eli-
gibility date.
We agree with the Trial Examiner that the Regional Director was
not arbitrary or capricious in his determination to use the original
pay roll in the second election. However, we do not adopt his finding
in this connection that the agreement by its specific terms so provided.
Rather do we find that the provisions of the agreement are not defin-
itive as to the pay-roll date to be used to determine eligibility to vote
in the second election. Thus, Section 5 makes provision for the con-
tingency of a new election in the event that the first election is set
aside, by stating that "the Regional Director shall be empowered to
conduct a new election under the terms and provisions of this agree-
ment ...." And Section 2 and 9 of the agreement provide that
"The eligible voters shall be those employees . . . who appear
on the Employer's pay roll for the period indicated below ..."
i. e., the week ending January 3, 1947. Although the latter provisions
of the agreement arguably support the Regional Director's determina-
tion to use the original pay roll in the second election, it is just as con-
sistent to hold that these provisions fix only the pay-roll eligibility
date for the initial election. Under the latter interpretation, Section
1 of the agreement would appear to be particularly applicable.
Accordingly, as the agreement is susceptible of varying interpreta-
tions, we cannot say that the Regional Director, in resolving the issue,
as the parties expressly authorized him to do, was arbitrary or capri-
cious in his determination to employ the original pay roll in the elec-
tion of July 22, 1947, or in sustaining the Union's challenge to the
four employees hired after January 3, 1947, on the ground that they
were ineligible to vote. And this is so, even though the use of a cur-
rent pay roll would have had the additional advantage of being con-
sistent with Board policy in directed elections. In the absence of
fraud, misconduct, or such gross mistakes as imply bad faith on the
part of the Regional Director, we deem his determination to be final
in consent elections of this character, even though we might have
reached a different conclusion 18
3. As shown above, another question bearing upon the second elec-
tion is whether the Union did, in fact, win the second election. This
relates, in substance, to the Regional Director's disposition of the
challenged ballots. The Trial Examiner found that the Regional Di-
is Cf. Red Cross Line v. Atlantic Fruit Co., 264 U. S. 109, 121; U. S. v. Mason d Hanger
4o., 260 U. S. 323 , 326; U. S. v. Gleason, 175 U. S. 588, 602 ; %hlberg v. U. S., 97 U. S. 398,
401; James Richardson & Sons, Ltd. v. W. E. Hedger Transportation Corp ., 98 F. (2d) 55
(C. A. 2), cert. den. 305 U. S. 657 ; Koepke & F. Liethen Grain Co., 205 Wis . 75, 236 NW
544; Williston on Contracts, Section 1929 A.
956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rector did not act arbitrarily in determining that 11 employees 19
whose ballots were challenged by the Respondent, were temporarily
laid off rather than discharged in the period between the first and the
second elections, and therefore entitled to vote and have their ballots
counted. The Respondent excepts to this finding on the grounds that
(a) the Trial Examiner and the Regional Director improperly con-
sidered the severance dates rather than-the second election date as of
controlling importance in establishing whether the 11 employees were
temporarily laid off or permanently discharged; and (b) regardless
of what the Respondent may have told the 11 employees at the time
of severance, those employees had no reasonable expectation on or
shortly before July 22, the time of the second election, of being re-
employed in the near future and were, on the election date, in the status
of discharges.
While we do not subscribe to the theory of the Trial Examiner that,
in fixing the eligibility of these employees, the law requires the attach=
ing of "primary, if not controlling importance to the conduct of the
Respondent on the severance day," we are unable to find that the
Regional Director invoked that theory in passing upon the eligibility
issue . Rather do we find that the Regional Director acted in accord
with established principles.20 Such principles require that considera-
tion be given to the conduct of the Respondent on the severance days,
as well as to all the relevant data as,to the status of the employees im-
mediately prior to the second election. In the latter connection, the
Trial Examiner analyzed the evidence before the Regional Director,
and in the proceeding herein insofar as the record related to the Re-
spondent's allegations of arbitrariness and capriciousness, and then
delineated the basis for the Regional Director's determinations as
-, 10 The Trial Examiner inadvertently referred to 10 employees although his findings and
those of the Regional Director in this category embraced 11 employees, including Mary
Stone.
20 The Trial Examiner apparently took the view that the Respondent submitted its case
to him and to the Regional Director on this theory . As to the Respondent's presentation
of its case before the Trial Examiner , we find no warrant in the record for restricting the
Respondent to an election of theories . As to the Respondent 's case before the Regional
Director , we find, contrary to the Trial Examiner and the Respondent, that the Regional
Director conducted his investigation , as the Report on Challenges indicates , pursuant to
Section 5 of the agreement. This section stated that "The eligible voters shall be those
employees . . . who appear on the Employer 's pay roll for the period . .. but excluding
any employees who have since quit or been discharged for cause and have not been rehired
or reinstated prior to the date of the election." Although the report indicates that the
Respondent challenged the ballots of the 11 employees on the ground that they were dis-
charged on the severance dates, it concluded with the finding that each of the employees
involved "was a temporarily laid-off employee , eligible to vote in the election" without
limiting the finding to the dates of severance . Where the investigation produced evidence
relative to matters subsequent to the dates of severance and prior to the election date,
and where such evidence was determinative of the question of the status of the employees,
the Regional Director included such evidence in his findings. For the foregoing reasons,
and upon a, consideration of the entire record, we conclude that the Regional Director took
into account in his report the test which we deem controlling herein, i., e ,, the reasonable
expectation of reemployment in the near future at the time'of the second election.
McMULLEN LEAVENS COMPANY 957
follows: (a) None of the employees in question was informed at the
time of the second election that the Respondent had in any way
countermanded its statements to these same employees at the dates
of severance that "when work picked up" they would be called back;
(b) in answer to the query of Iva Stanley, one of the 11 employees
that "I . . . would like to know where I stand . . . if I may
be called back say by September or so," the Respondent replied
on June 24, "and as for work it is going very slow and cannot say yet
when we will be able to call you and all the rest of the girls back.
Will let you know as soon as needed "; 21 and (c) the temporary lay-
off status of the 11 employees is emphasized by the fact that the Re-
spondent took affirmative steps to discharge employee Susan Weed in
June, and employee Barbara Wilkins on or about July 1, 1947, while
taking no action as to any of the 11 employees.
The Respondent argues that the Regional Director failed to consider
the circumstances surrounding the change-over in the Respondent's
operations from blouse to shirt manufacturing, viz, that the 11 em-
ployees were inefficient and could not be used in the manufacture of
shirts, that 5 new employees were hired after the severance of the 11
employees, and that, although the Respondent was seeking new em-
ployees for its shirt operation at the time of the second election, it did
not recall the 11 employees in question.
The record shows that the Regional Director had before him the
affidavit of the Respondent's Supervisor Hill describing the change in
operations and the need for additional employees. Although the
statement of Hill is not referred to in the Report on Challenges, it
was not incumbent upon the Regional Director to recite all the evi-
dence, or even all undisputed evidence from which inferences opposed
to his own might have been drawn. It is sufficient that, in rejecting
the Respondent's contentions, the Regional Director did not act in an
arbitrary, capricious, or fraudulent manner. We find that he did not
for the following reasons : (a) The Regional Director acted within the
scope of his authority in crediting the statement of the 11 employees
that they were not criticized by the Respondent for the character of
their work as blouse operators, and in rejecting the Respondent's con-
tention as to inefficiency; Moreover, the record shows, as the Trial
Examiner found, that the Respondent retained blouse operators in the
manufacture of shirts, (b) As to the hiring of new employees, the
record is vague in its allusion to this occurrence, i. e., the number is
stated as "not more than 5" and the hiring dates are not specified so as
to establish whether the new employees were hired after or before all
12 Blanche DeLorme, the Respondent's supervisor who wrote the letter, testified that the
expression "all the girls" was intended to describe the 11 employees.
958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the 11 were laid off, or after or before some of the 11 employees
were laid off. Even if we were to give full ,weight to this argument of
the Respondent, there would remain 6 of the 11 employees as to whom
reasonable expectation of reemployment had not been frustrated by
the hiring of 5 new employees; (c) Finally, while it appears that the
Respondent was seeking additional employees at the time of the sec-
ond election, it had not actually begun to add to its pay roll which
stood at approximately 77, as compared with 113 employees at the
time of the first election and before the change-over in operations.
Indeed, in this context of expected pay-roll expansion, the Respond-
ent's afore-mentioned letter of June 24, is, as we have found herein,
persuasive evidence that the 11 employees would be called back when
operations "picked up."
The Respondent further contends that the employees involved herein
had no reasonable expectation of reemployment at the time of the
second election for the reason that "hospitalization insurance premi-
ums were not paid with the group employee payments after the ten
dischargees were laid off, and it is a matter of objective fact that tem-
porary lay-offs were given vacation with pay under the vacation plan
-of the company and that the ten dischargees 22 did not receive any
vacation pay." As to the hospitalization insurance premiums, the
record shows that the payments were made by the employees them-
selves by voluntary deductions from their wages rather than through
contributions from the Respondent. In the event of severance from
the pay roll such as occurred herein, there were obviously no earnings
from which to deduct -hospitalization premiums regardless of the
status of the employees. Moreover, the record shows that, as to one
,of the 11 employees, Isabelle Sanborn, the Respondent deducted in
.advance from her wages for the week ending May 3, 1947, the date of
her lay-off, premiums for the months of May and June. Accordingly,
we find this contention without merit. As to the vacation pay, in the
absence of any showing in the record that there were in fact employees
in the status of temporary lay-off other than the 11 in question who
received such benefits, we attach no significance to this contention of
the Respondent.
Under all these circumstances, we are persuaded, as was the Trial
Examiner that the Regional Director was not arbitrary or capricious,
but was within the exercise of his sound discretion in overruling the
Respondent's challenges, and in finding that the 11 employees were in
temporary lay-off status at the time of the second election.
a The reference is to all the employees whose ballots were challenged by the Respondent
except that of Mary Stone. As to Mary Stone, the Respondent asserts that , contrary to,
the Regional Director 's determination , the Union and not the Respondent challenged her
ballot. We find , as the record shows, that the Respondent challenged the ballot of
Mary Stone.
MCMULLEN LEAVENS COMPANY 959
We agree with the Trial Examiner's conclusion as to the Respond-
ent's contention addressed to the Regional Director's disposition of
the Union's challenge to the ballot of employee Jennie Buckley. In
any. event, however, it is clear that the inclusion of the ballot of Jennie
Buckley in the revised tally could not have affected the results of the
election.
. The Respondent maintains further that the Regional Director was
precluded from proceeding with the investigation of representatives in
the second election on and after August 22, 1947, the effective date of
the amended Act, for the reason that the Union admittedly did not
meet the filing requirements under Section 9 (f) and (h) until October
1947. However, as the Trial Examiner found, the matter of com-
pliance is to be determined administratively by the Board itself, and
is not litigable by the parties. Moreover, the period of non-compliance
by the Union coincided with the period of grace extended by us, in
our administrative discretion in the early months of the amended Act,
to Unions so that they might effect compliance with the filing require-
ments of the Act, without interruption in the investigation of bargain-
ing representatives. Clearly then, the fact that the Union availed
itself of this grace period should not be permitted to operate to its
disadvantage. The Regional Director, therefore, acted properly in
proceeding with the investigation and the contention is without merit.
Accordingly, because it is admitted that the Respondent refused to
bargain with the Union and because the defenses and reasons offered
by the Respondent for such refusal are, under all the circumstances
and upon a consideration of the entire record, lacking in merit,' we
find that the Respondent has violated the Act. More particularly, we
find that on January 23, 1948, and at all times thereafter, the Respond-
ent refused to bargain collectively with the Union as the exclusive
representative of its employees in the unit hereinabove found to be
appropriate, and thereby interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed in Section 7 of the
Act, in violation of Section 8 (a) (1) and (5) of the Act.
ORDER
Upon the entire record in this 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, McMullen
Leavens Company, Keeseville, New York, and its officers, agents,
successors, and assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with Playthings, Jewelry and
Novelty Workers International Union-CIO, as the exclusive repre-
960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sentative of all production and maintenance workers, at the Respond-
ent's Keeseville, New York, plant, excluding foremen, foreladies, and
all supervisors as defined in the amended Act;
(b) Interfering in any other manner with the efforts of Playthings,
Jewelry and Novelty Workers International Union-CIO, to bargain
collectively on behalf of employees in the aforesaid bargaining unit.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with Playthings, Jewelry
and Novelty Workers International Union-CIO, as the exclusive bar-
gaining representative of all production and maintenance employees
at the Respondent's Keeseville, New York, plant, excluding foremen,
foreladies, and all supervisors as defined in the amended Act, with
respect to rates of pay, wages, hours of employment, or other terms or
conditions of employment, and if an understanding is reached, embody
such understanding in a signed agreement;
(b) Post at its plant in Keeseville, New York, copies of the notice
attached hereto, marked "Appendix A." 2s Copies of such notice, to
be furnished by the Regional Director for the Second Region, shall,
after being duly signed by the Respondent or its representative, be
posted by the Respondent immediately upon receipt thereof, and
maintained by it for a period of at least sixty (60) consecutive 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 Second Region in writing,
within 10 days from the date of this Order, what steps the Respondent
has taken to comply herewith.
APPENDIX A
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 BARGAIN collectively upon request with PLAYTHINGS,
JEWELRY AND NOVELTY WORKERS INTERNATIONAL UNION-CIO, as
the exclusive representative of all employees in the bargaining
unit described herein, with respect to wages, rates of pay, hours
s" In the event this Order is enforced by 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."
I
McMULLEN LEAVENS COMPANY - 961
of employment , or other terms or conditions of employment,
and if an understanding is reached , embody such understanding
in a signed agreement . The bargaining unit is :
. All the production and maintenance employees at the Keese-
ville, New York, plant , exclusive of foremen , foreladies, and
all supervisors as defined in the amended Act.
WE WILL NOT in any manner interfere with the efforts of PLAY-
THINGS, JEWELRY AND NOVELTY WORKERS INTERNATIONAL UNION--
CIO, to bargain collectively with us as the exclusive representa-
tive of the employees in the appropriate unit described above.
MCMULLEN LEAVENS COMPANY,
Employer.
Dated------ ---------- By -----------------------------------
(Representative ) ( Title)
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
Mr. Warren H. Leland, for the General Counsel.
Messrs. Giddings, Keating and Reid, by Messrs. John M. Keating and Albert
Brodkin, for the Respondent.
Mr. Edward M. Rosenhalm, for the Union.
STATEMENT OF THE CASE
Upon a charge duly filed on March 18, 1948, by Playthings, Jewelry and Novelty
Workers International Union-C. I. 0., herein called the Union, the General
Counsel of the National Labor Relations Board, herein respectively called the
General Counsel and the Board, by the Regional Director of the Second Region
(New York, N. Y.), issued a complaint against McMullen-Leavens Co., herein
called the Respondent. The complaint alleged that the Respondent had engaged
in, and is engaging -in, unfair labor practices affecting commerce, within the
meaning of Section 8 (a) subsections (1) and (5), and Section 2 subsections
(6) and (7), of the National Labor Relations Act, as amended (Public Law
101, 80th Congress, 1st Session), herein called the Act. Copies of the complaint,
charge and notice of hearing were duly served upon the Respondent and the Union.
With respect to the unfair labor practices, the complaint alleged, in substance,
that on or about January 23, 1948, and at all times thereafter, although duly
requested to do so, the Respondent refused to bargain collectively with the Union
as the exclusive representative of the employees in a certain appropriate unit,
with respect to Respondent's employees' rates of pay, wages, hours of employ-
ment and other conditions of employment, although a majority of its employees
in the said unit had selected and designated the Union as. their representative
for such purpose.
The answer duly filed by the Respondent admitted its refusal to bargain with
the Union, denied the commission of any unfair labor practices and pleaded twelve
"Affirmative Defenses," which may be summarized as follows :
That the Regional Director (hereinafter referred to as the Director) illegally,
arbitrarily, and capriciously had set aside the results of a "Consent Agreement"
962 DECISIONS- OF NATIONAL LABOR RELATIONS BOARD
election held on February 25, 1947, which election was lost by the Union ; that
the Board had illegally refused to review the Director's "set aside" order con-
tained in his Report on. Objections ; that in the second election held July 22, 1947,
the Director illegally, arbitrarily, and capriciously sustained the rights of 11
challenged voters to vote at said election and denied such right to 4 other chal-
lenged voters, as a result of which action the Union was later declared to have
received a majority of, the votes cast at said election ; that in violation of its
Rules and Regulations, the Board refused to consider Respondent's Exceptions
to the Director's Report on Challenges to the election of July 22, 1947; that the
Union has not complied with Sections 9 (f) and (h) of the Act.
- Pursuant to notice, a hearing was held at Plattsburg, N. Y., on July 13-15,
1948,. inclusive, before the undersigned Trial Examiner, appointed by the Chief
Trial Examiner. The General Counsel' and the Respondent were represented
by attorneys, and the Union by its International Representative. All parties par-
ticipated in the hearing. Full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing on the issues was afforded
all parties. At the conclusion of the hearing the parties waived oral argument.
Subsequently, the time to file briefs was extended, during which time, the General
Counsel and the Respondent filed briefs with the undersigned. Since then, each
of said parties filed supplemental briefs.
Upon the entire record in the case, the briefs and from his observation of the
witnesses , the undersigned makes the following:
FINDINGS OF FACT
1. BUSINESS OF THE RESPONDENT
McMullen Leavens Company, a New York corporation, is engaged in the manu
facture and sale of blouses and shirts. Its principal plant is located at Glens
Falls, New York. It also operates a smaller plant at Keeseville, New York, with
which we are here concerned. During all times relevant, the Respondent used
annually, at its Keeseville plant, raw materials having a value in excess of
$50,000.00, 75 percent of which was obtained from outside the State of New York.
During the same period, the sales of its finished products, manufactured at the
Keeseville plant, were in excess of $100,000.00 per annum, 75 percent of which
was sliipped ' outside the State of New York. The Respondent admitted, and the
undersigned finds, that Respondent is engaged in commerce within the meaning
of the Act.
IL THE LABOR ORGANIZATION INVOLVED
Playthings, Jewelry and Novelty Workers International Union-C. I. O. is a
labor organization admitting to membership employees of the Respondent.
M. THE UNFAIR LABOR PRACTICES INVOLVED
The refusal to bargain.
A. The appropriate unit
In accordance with the "Agreement for Consent Election " entered into by the
Respondent and the Union on January 23, 1947 ,' approved by the Director on
I This designation includes the attorney on the staff of the General Counsel who presented
the case in his behalf.
Unless otherwise indicated, all events referred to herein occurred in 1947.
McMULLEN LEAVENS COMPANY 963
January 29, the undersigned finds that all production and maintenance employees
of Respondent employed at its Keeseville plant, exclusive of foremen, foreladies,
.supervisory employees with authority to hire, promote, discharge, discipline or
otherwise effect changes in the status of employees, or effectively recommend
such action, constitute a unit appropriate for the purposes of collective bargain-
ing within the meaning of the Act.
B. The Consent Elections-Director's Report on Objections and His Determina-
tion of Bargaining Representative
On December 12, 1946, the Union petitioned the Board for certification as rep-
resentative of Respondent's employees for purposes of collective bargaining.
On January 23, 1947, Respondent and the Union entered into a form "Agreement
for Consent Election," designated as Form "NLRB-651 (11-1-46) hereinafter
referred to as the Agreement. By the terms of this agreement, an election was
to be conducted on February 25, to determine whether or not the employees
desired to be represented by the Union. The construction of parts of this agree-
ment was one of the most vigorously contested issues in the case. Its relevant
portions read as follows :
Said election shall be in accordance with the National Labor Relations
Act, the Board's Rules and Regulations, and the customary procedures and
policies of the Board; provided that the determination of the Regional
Director shall be final and binding upon any question, including questions as
to the eligibility of the voters, raised by any party hereto relating in any
manner to the election. [Emphasis supplied.]
.. . 5. Objections, Challenges, Reports Thereon: Objections to the conduct
of the ballot, or to a determination of representatives based on the results
thereof, may be filed with the Regional Director within five days after issu-
ance of the Tally of Ballots. Copies of such objections must be served upon
the other parties. The Regional Director shall investigate the matters
contained in the objections and issue a report thereon. If objections are
sustained the Regional Director may in his report include an order voiding
the results of the election and, in that event, shall be empowered to conduct a
new election under the terms and provisions of this agreement at a date, time
Sand place to be determined by him. If challenges are determinative of the
results of the election, the Regional Director shall investigate the challenges
and issue a report thereon.
Pursuant to the agreement, an election by Respondent's employees was held
at its Keeseville plant on February 25. The results of the election were set forth
In the Tally of Ballots issued on the same day, showing that the Union lost
the election.'
The Union, by a letter dated February 26, objected to any determination of
bargaining representative based on the results of said election on the ground
"that the Company and its agents violated 'Section 8 (1) of the Act." The
Director conducted an investigation of these objections and on May 20, made and
filed his Report on Objections finding "that the election was conducted under
circumstances which did not permit a free and untrammelled exercise of free
,choice of representatives by the Company's employees." Accordingly, he set
aside the results of the election. On or about May 26, the Respondent attempted
. 8 The Tally showed 118 eligible voters, but only 110 ballots were cast. Forty-four voted
for, and 64 voted against the Union ; 2 ballots were challenged.
964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to file with the Board at Washington, D. C, and asked the Board itself to
directly consider Respondent's Exception to the Director's Report. The Board
on May 27, refused to consider the Exceptions, forwarded the same to the
Director and advised Respondent of its action. The Director adhered to his
decision.
A second election was held on July 22, resulting in a determination by the
Director on November 20, that the Union had received a majority of the votes
cast at such election and was therefore the exclusive bargaining representative
of Respondent's employees.4
C. The Contested Issues
Prefatory Statement
Though the subject is considered hereafter at,greater length, it,is appro-
priate at the outset to briefly define the role of the undersigned in this proceeding.
The twelve "Affirmative Defenses" upon which Respondent relies, arise out
of the two elections held pursuant to the Agreement. It was there,agreed that
the determination of the Director "upon any question ... relating in any manner
to the election [shall be final and binding]." Most of the issues tendered by
these defenses were considered and decided by the Director. As to those, my
jurisdiction and power is limited to a review of the evidence received by, or
offered to and rejected by him, and the consideration'of such further evidence
as was received at the hearing before me, for the sole and limited purpose of
determining whether the Director was guilty of arbitrary or capricious conduct
in making his rulings. It is not my function, or within my power, to re-examine,
consider or weigh evidence for any other purpose. On the remaining issues, not
tendered for decision to the Director, I have made specific findings.
The Respondent admitted its refusal to bargain with the Union, but attempted
to justify such refusal on the ground that all action by the Board and the
Director after February 25, when the results of the Tally of Ballots was un-
favorable to the Union, was illegal and void, and that the Union, therefore, was
not the representative of Respondent's employees. Its defenses in this proceed-
ing are based on twelve so-called "Affirmative Defenses," which will be consid-
ered in the order in which they appear in Respondent's Answer.
1. The First Affirmative Defense pertains to the alleged failure of the Union
to comply with paragraph 5 of the Agreement (supra) prescribing the time and
manner of filing and service of Objections on the results of the' first election.
These objections were made by the Union in a letter dated February 26, received
.by the Board on or prior to March 3rd, and.reading as follows :
FEBRUARY 26, 1947.
Mr. BENJAMIN B. NAIIMOFF, Field Examiner,
NLRB, Region 2,120 Wall Street, New York 5, N. Y.
DEAR SIR : I, hereby, charge that the Company and its agents violated
Section 8 (1) of the National Labor Relations Act to such an extent that
the McMullen-Leavens Company election (Case No. 2-R-7387) does not indi-
cate a true desire of these employees.
* The Tally of Ballots issued on July 22, 1947, showed 31 votes for, 36 votes against,
the Union and 25 additional ballots challenged By this report dated November 6, 1947,
the Director overruled 16 challenges and sustained 9. After opening and counting the 16
ballots to which challenges were overruled, the revised Tally of Ballots issued on November
12, 1947, showed 43 votes for, and 40 votes against the Union.
McMULLEN LEAVENS COMPANY 965,
" Because of said acts I am requesting the Board to dismiss the results of
the election of February 25, 1947 and conduct a bargaining election with
adequate provisions made to insure a free expression of the desires of the
employees.
Under separate cover, I am submitting to the Board charges in detail,"
affidavits, statements and other evidence pertinent to the charge of unfair
labor practices.
Sincerely yours,
EDWARD M. ROSENHAHN,
International Representative.
cc : Mr. Thomas Hill, Mgr.
McMullen-Leavens Co.,
Glens Falls, N. Y.
A copy of this letter was sent to the Respondent. While such letter was denom-
inated as a "charge," it directly requested that the election be set aside and a new
,one ordered. In any event it was understood and considered by the Director as
an objection, within the meaning of paragraph 5 of the Agreement, supra.
Respondent did not deny receiving a copy of the letter, but no evidence was
offered as to the date of its receipt. It will therefore be presumed to have been
received the following business day.6 Even if it be assumed that there was a late
service.of objections, there was no showing of prejudice.?
Respondent contends further that the Union's letter of February 26th does
not comply with Section 203.55 of the Board's Rules (Series 4) 8 which require
that "the objections shall contain a short statement of the reasons therefore."
The manner and method of bringing the Union's objections to the attention of
the Director are prescribed by the agreement of January 23rd, and not by the
Board's Rules. Sun Ship Employees Association v. N. L. R. B., 139 F. (2d)
744, 745 (C. C. A. 3) ; In re Anderson Manufacturing Co., 58 N. L. R. B. 1511.
(The inapplicability of the foregoing and other procedural rules in Consent
Election cases is discussed at greater length hereafter.) That agreement merely
provided that "objections * * * to a determination of representatives
based on the results [of the election] may be filed with the Regional Director
within 5 days after issuance of the Tally of Ballots. Copies of such objections
must be served upon the other parties." There was no requirement in the
Agreement that the Objections should "contain a short statement of the reasons
therefore," such as is prescribed by Section 203.55 of the Rules. Here, the Union,
within, said 5 days period, advised the Director and the Respondent that it
demanded a new election because "the Company and its agents violated Section
8 (1) of the [Act] to such an extend [sic] that the election of [February 25]
6 The "charges in detail" were contained In the Union' s letter of March 1 , 1947, received
by the Board March 6, but no copy of which was ever served on Respondent . The under-
signed hereafter finds that the Union's letter of February 26, standing alone, fulfills the
requirements of paragraph 5 of the Agreement. The March 1 letter is received in evidence
for the sole purpose of determining whether the Director acted arbitrarily or capriciously
In making use thereof. I find that he did not.
e In Matter of Ahonen Lumber Co., 77 N. L. R. B. 706 , Case No. 18-RM-4.
4 In the Matter of Gwaltny, Jr., and Co., 74 N. L. R. B. 871; Matter of Reliance Manu-
facturing Co., 67 N. L. R. B. 515, footnote 3
8 These Rules were promulgated pursuant to Section 6 of the Act, authorizing the Board
to make such rules and regulations as may be necessary to carry out the provisions of the
Act. The Series 4 Rules were In effect during all times relevant herein and are the Rules
referred to unless otherwise mentioned . No substantial change pertaining to the Issues
involved in this proceeding was made by Series 5 of the Rules, effective August 22, 1947.
844340-50-vol. 83-62
966 DECISIONS OF NATIONAL LABOR RELATIONS "BOARD
does not indicate a true desire of [ its] employees ." Section 8 (1) of the Act'
read as follows : "It shall be an unfair labor practice for an employer to interfere
with, restrain or coerce employees in the exercise of the rights guaranteed in
Section 7." The letter of February 26th, when read in conjunction with Section
-8 (1) of the Act, clearly advised Respondent of the Union 's objection that the
-Respondent had restrained and coerced the employees in the exercise of their
rights to a free and untrammelled election . The letter of February 26th was
sufficient compliance with paragraph 5 of the Consent Election Agreement 10
2. The Second Affirmative Defense attacked the Director 's finding of Re-
spondent 's improper preelection conduct on the ground that only 4 out of 110
employees "are directly alleged to have been questioned regarding their union
affiliation by either the foreman or forelady" ; , that the statements on which
these findings were based were hearsay and "were properly within the area of
free speech ." The first of these contentions is clearly without merit . The number
of witnesses necessary to persuade the Director of any violative conduct by the
Respondent cannot be arithmetically measured . Under the agreement, the weight
and sufficiency of the evidence were for the Director to determine , not the
undersigned or the Board . The fact that more employees were not interrogated,
is not evidence of arbitrary or capricious conduct by the Director.
Nor is there any merit to the claim that the finding is based in part on hearsay.
N. L. R. B . v. American Potash Company, 98 F. (2d) 488, 493 (C. C. A. 9) ;
N. L. R. B . v. Remington Rand Company, 94 F. (2d ) 862, 873 ( C. C. A. 2)'1
Equally lacking in substance is the defense that statements made by super-
visory personnel "were properly in the area of free speech , and permissible." The
Director in his report found that ( 1) "One ' employee . . . a few' days prior to
the election , ... was called into the office by Norman Wrigley, foreman, and
questioned about her union affiliation . . . and was asked how many other girls
in the plant have signed up for the Union ." ( 2) Another employee, . . . a few
days before the election . . . was also brought into the office by Wrigley and
questioned in similar vein . She . . . was asked what she thought of the union
and whether the girls wanted it." (3) Both of these employees testified that
"[three other employees ] were likewise questioned by Wrigley in the office as to
the sentiment of the girls for the Union ," and (4 ) "Another employee . . . a few
days before the election . . . was questioned by Blanche Delorme [forelady] as
to the extent of union organization , and warned that the girls were doing some-
9 This section is continued in Section 8 (a) (1) of the Act as amended.
.10 For a simiar ruling in a case involving an election ordered by the Board, See In
Matter of Reliance Manufacturing Co., 67 N . L. R. B. 515.
n There is even less objection to hearsay testimony in the Director's administrative de-
termination proceeding than there is to such testimony in proceedings to prevent unfair
labor practices under Section 10 of the Act, which were the type of proceedings involved
in the cases just cited . The amendment of Section 10 (c) made by the Taft-Hartley Act,
effective August 22, 1947 , whereby , "so far as practicable ," the rules of evidence prevailing
in the Federal District Courts were proscribed upon certain proceedings under the Act,
is not applicable to the present situation for two reasons : ( 1) that amendment is applicable
only to proceedings under Section 10 , whereas the determination of bargaining representa-
tive is made under Section 9, and (2) it is procedural only and therefore has no retro-
active effect . ".Insofar as Congress amended certain procedural provisions of the Act it
reflected no intention to reach back and nullify procedural steps already taken. - These steps
-already taken , pleadings , and all things done under the old law must stand . Procedural
changes operate in the future." N. L. R. B. v. National Garment Co., 166 F. (2d) 233, 238
(C. C. A. 8). See also N. L. R. B. v. Mylan-Sparta Co., 166 F. (2d) 485 (C. C. A. 6) ;
N. L. R. B. v. Brozen, 166 F. (2d) 812 (C. C. A. 2) ; N. L. R. B. v. Whitten berg, 165 F. (2d)
102 (C. C. A. 5) ; Matter of Underwood Machinery Co., 77 N. L. R. B. 1428.
McMULLEN LEAVENS COMPANY 967
'think they would be sorry for." Rather than being permissible as an exercise
of free speech, such statements and conduct have repeatedly been held to be, per
:se, coercive and violative of the Act's
3. The Third Affirmative Defense asserts that the matters raised by the
Union's objections to the results of the February 25th election could only be
determined after the filing of a formal complaint, hearing before a Trial Exam-
iner, and compliance with the procedure established by Section 203.7 to 203.45 of
=the Board's Rules and Regulations. While it is true that such unlawful conduct
might also result in an unfair labor practice proceeding under Section 10 of
the Act and the Rules just cited, that fact does not remove it from the ambit
of authority granted the Director under the Agreement. Matter of Miehle Print-
ing Press & Mfg. Co., 58 N. L. R. B. 1134.
4. (a) The Fourth Affirmative Defense alleges that the Agreement "provides
that the determination of the Regional Director shall be final and binding only
with respect to matters encompassed within the meaning of the terms `conduct
,of the ballot' or `conduct of the election' . . . [and that] the applicable Rules and
Regulations of the Board do not give the Regional Director power to make any
-final determination with respect to `conduct affecting the results of the election' ";
that with respect to the latter, the Director must transfer the proceedings for
.appropriate action to the Board at Washington, D. C.; that the Board refused to
.accept or act on Respondent's exceptions to the Regional Director's Report on
Objections and instead forwarded the same to the Regional Director. The Fifth
_Affirmative Defense pleads that prior to June 25, 1947, Respondent made a motion
before the Board that "(a) the Tally of Ballots, the Report on Objections and
the Exceptions to the Report on Objections be filed with the Board in Washing-
ton, D. C., and that (b) a hearing be ordered before a hearing officer on peti-
tioner's Exceptions to the Report on Objections in accordance with the provisions
-of Section 203.50, 203.51 and 203.52 [of the Board's Rules and Regulations] inso-
far as applicable," which motion was denied by the Board on June 25, 1947, on
the ground "that the Director was acting pursuant to authority vested in him
under the consent election agreement entered into by the parties."
These two Affirmative Defenses raise substantially the same issue-is the
question of the effect of the Respondent's preelection conduct to be determined
by the Director with the finality prescribed by the Agreement," or is it a decision
to be made by the Board , after hearing, as the original trier of fact. Because of
-the earnestness and vigor with which the substance of these two defenses were
urged by Respondent, and because the area and scope of decision permitted to the
'Trial Examiner herein depends in a great measure upon a proper analysis of these
defenses, a more detailed discussion of the right and remedies available to the
Respondent to challenge the Director's Report on Objections is deemed
appropriate
Section 203.48 of the Rules contains the provisions authorizing Consent Election
Agreements. By subsection (a) thereof, the Employer and the Union may
-enter into such an "agreement leading to a determination by the Regional Director
U H. J. Heinz Co. v. N. L. R. B., 311 U. S. 514, 518, 520 ; P. H. Glatfelter Co. v. N. L. R. B.,
141 F. (2d) 631, 633 (C. C. A. 3); N. L. R. B. v. Cities Service Oil Co., 129 F. ( 2d) 933,
-934 (C. C. A. 2) ; Matter of Hinde d Dauch Paper Co., 78 N. L. R. B : 488; Matter of Ames
Spot Welder Co., Inc., 75 N. L. R. B. 352; Matter of Fulton Bag and Cotton Mills, 75
N. L. R. B. 883; Matter of Container Mfg. Co., 75 N. L R. B. 1082; Matter of Sohio Pape
Line Co., 75 N. L. R. B. 858 ; Matter of General Shoe Corporation, 77 N. L. R. B. 124.
za The scope of review available in the instant proceeding to test the validity of the
Director 's determination against a charge that his decision was arbitrary or capricious is
-discussed in later portions of this report.
968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the facts after such consent election." Subsection (b) authorizes such an
agreement "leading to certification by the Board." Thus we have the first clear
distinction between the two types of agreement-(a) provides for determination
of the bargaining agent by the Regional Director, (b) provides for "certification
by the Board." An even more important distinction appears in subsection (a)
by reason of the provision "that the rulings and the determination by the Re-
gional Director of the results of the election shall be final." Consistent with the
finality to be attached to the Director's determination as provided by subsection
(a), no provision is made for the filing or service of objections to the report and
determination of the Director. Subsection (b), however, establishes comprehen-
sive "post-election procedure" to litigate issues such as are here involved, lead-
ing to a decision by the Board.
Here, the Respondent, acting through competent counsel who signed the agree-
ment in its behalf, entered into the contract authorized by subsection (a) and
thereby voluntarily foreclosed itself from recourse to the procedure prescribed
by subsection (b) 19 "By the Agreement the parties thereto consented among
themselves that the issues as to representation should be settled in the way which
the agreement prescribed." Sun Ship Employees Association v. N. L. R. B., 139 F.
(2d) 744, 745 (C. C. A. 3). That such contracts are appropriate to carry out the
provisions of the Act is evidenced by the fact that its terms are a part of one of
the form agreements provided by the Board and that its provisions have been
given effect in decisions by the Board and enforced by the courts." In the light
of the analysis of Section 203.48 of the Rules heretofore made, the conclusion is
inescapable that Respondent's contentions cannot be sustained under the Board's
Rules. By its written contract, Respondent agreed that the determination of the
Director "upon any question, including questions as to the eligibility of voters,
raised by any party hereto, relating in any manner to the election [shall be
final]."
Respondent contends further, that the phrase, "including questions as to the
eligibility of voters" contained in the agreement, is illustrative of the power
granted the Director and operates as a limitation upon the exercise of broader
powers. A similar contention was made in Phelps-Dodge Corporation v.
N. L. R. B., 313 U. S. 177. It was there claimed that when Congress in the
National Labor Relations Act authorized the Board "to take such affirmative
action, including reinstatement of employees with or without back pay, as
will effectuate the policies of this Act," it limited the Board's authority to re-
instatement of old employees, and did not authorize the Board to order an
employer to cease hind desist from discriminating in hiring new employees. In
disposing of the contention that the "including" phrase operated as a limitation
upo : the "affirmative action" the Board was otherwise authorized to take,
*-se Court said : "To attribute such a function to the participial phrase intro-
duced by `including' is to shrivel a versatile principle to an illustrative applica-
14 It is well settled that parties to a contract may agree in advance to submit broad
categories of questions to a designated person and that his decision , once arrived at, is
final and binding unless fraudulent, arbitrary and capricious. United States v. Mason &
Hanger Co., 260 U. S. 323; Merrill-Ruckgaber Co. v. United States, 241 U. S. 387; Plumley?
v. United States, 226 U. S. 545 ; Martinsburg & Potomac R. Co. v. March, 114 U. S. 549;
Memphis Trust Co. v. Brown-Ketchum Iron Works, 166 Fed. 398, 403-404 (C. C. A. 6),
certiorari denied, 214 U. S. 515; Kihlberg v. United States, 97 U. S. 398, 401; United'
States v. Gleason, 175 U. S. 588, 602, 606-607; Marine Transit Corp. v. Dreyfus, 284 U. S.
263, 278.
n N. L. it. B. v. Tower Co., 329 U. S. '324 (1946) ; N. L. it. B. v. Capitol Greyhound'
Lines, 140 F. (:`d) 754 (C. C. A. 6) ; 'Semi-Steel Casting Co v N. L. R B, 160 F. (2d),
388 (C. C A. 8). 1
MCMULLEN LEAVENS COMPANY 969
Lion. We find no justification whatever for attributing to Congress such a
casuistic withdrawal of the authority which, but for the illustration, it clearly
has given the Board. The word 'including' does not lend itself to such de-
structive significance. Helvering v. Morgan, 293 U. S. 121, 125, note." See also
Federal Land Bank v. Bismark Co., 314 U. S. 95, 99.
The attempt to distinguish the Director's jurisdiction to determine the effect
,of (1) unlawful "conduct of the election" from (2) "conduct affecting results of
the election" has also been denied by the Board. It has now been well estab-
lished by its decisions , that the determination must be made by the Director,
regardless of the nature of the objection. In the Matter of Ferriss-Lee Lumber
and Manufacturing Co., 71 N. L. R. B. 989, the Employer filed formal objections
to the result of an election in favor of a union on the ground that the latter had
coerced and intimidated certain employees. Pursuant to an Agreement for
Consent Election, almost identical in terms with the agreement involved herein,
the Director investigated the objections to the elections and issued a report in
which he found that the objections were without merit and denied the petition
for a new election. The Employer filed exceptions to the Director's Report
with the Board at Washington, D. C., in which it urged that the findings and
conclusions of the Director be reversed and that the election be set aside, or
in the alternative, that a hearing be held on the issues raised by its objections.
The Board refused to consider the exceptions and said : "The Board has uni-
formly adhered to the policy of deeming itself bound by the customary com-
mitment of the parties to regard as final and binding the Regional Director's
determination with respect to questions arising out of the conduct of an election
held pursuant to an 'Agreement for Consent Election.' The Board, therefore, has
refused to consider the merits of objections to ruling of its Regional Directors
on matters relating to consent elections (except when pertinent to the issues
presented in an unfair labor practice proceeding, in which event the Board will
disturb the Regional Director's rulings only if it clearly appears that they are
arbitrary or capricious). * * * In accord with the provisions of the con-
sent election agreement and customary Board practice in this respect, the Ex-
ceptions to the Report on Objections filed by the Employer are hereby dismissed."
See also In Matter of Miehle Printing Press and Mfg. Co., 58 N. L. R. B. 1134.11
It follows from the foregoing analysis and authorities that the function of
the undersigned is not that of an original trier of fact to determine whether the
Respondent's alleged preelection conduct violated Section 8 (1) of the Act, or
even to determine whether such conduct vitiated the results of the election to
such an extent that it could not be deemed to be the results of a free and un-
10 In accordance with the policy thus expressed, the Board in the instant proceeding,
refused to consider Respondent's Exceptions, and on June 26 wrote Respondent as follows :
"The Board today has denied your motion * * *. The basis of the Board's [action]
was that the Regional Director was acting pursuant to authority vested in him under the
consent election agreement entered into by the parties."
In Its Supplemental Brief, Respondent calls my attention to a revision on December 31,
1947, of the "Agreement for Consent Election," Form 651. By this revised form, para-
graph 5 of the old form (the one used in this case) is amended to make it more clear that
objections which may be filed include objections to "conduct affecting the results of the
election." Respondent urges that by making this revision, it must be admitted that prior
thereto, the Director was without authority to pass on the type of objections last mentioned.
The contention cannot be sustained. Significantly, no change was made in the revision as
to the finality of the Director's decision "upon any question * * * raised by any
party hereto relating in any manner to the election." The revision was of a clarifying
nature only.
970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
trammelled choice of Respondent's employees. The power of the Trial Exam-
iner herein is limited to a review of the rulings of the Director for the sole pur-
pose of determining whether such rulings and orders were arbitrary and
capricious. Matter of Ferris Lee Lumber and Manufacturing Company, supra.
It may even be assumed that if the Trial Examiner herein was presently called
upon to pass on all the issues submitted to the Director as the original trier of
fact, the undersigned might have reached a contrary conclusion 17 That assump-
tion, however, cannot expand the jurisdiction or power of the Trial Examiner
herein, which as stated above, is limited to a determination whether the Director
was guilty of arbitrary or capricious conduct in his various rulings.
(b) The alleged arbitrary an4 capricious conduct of the Director in setting aside
the February 25th election
Viewed against this legal framework, we turn to the plea of Respondent that
the Director acted in an arbitrary and capricious manner in setting aside the
results of the first election. The point of beginning is the Director's Report on
Objections filed by the Union. That report states, and Respondent admits, that
following the filing of Objections, the Director caused an investigation to be
made of the matters described in said objections. "B In the course of that investi-
gation, four employees testified that Foreman Wrigley made inquiry of each of
them concerning their Union activities, which conduct I have heretofore found
to have been violative of the Act. Wrigley testified in that investigation and
denied making the inquiries. The Director, in the exercise of powers granted by
the agreement, credited the testimony of the four employees and I find nothing
of an arbitrary or capricious nature in that conclusion. The Respondent contends
further that the Director acted arbitrarily, because, according to Wrigley's
testimony before the undersigned, Field Examiner Naumoff, who participated
in the investigation of the Union's objections, only spent 5 or 10 minutes with
Wrigley, whereas he spent hours with the four other employees. During that
short period of time, Wrigley testified, Naumoff discussed with him the charges
of the four employees afore-mentioned ; wrote out, in small long hand, an
affidavit covering 11/2 pages of legal cap; made initialed interlineations (as
appears from the Exhibit) ; permitted Wrigley to read and change the prepared
affidavit, and took his signature and oath thereto. Though neither the Director
nor Naumoff testified, the utter falsity of Wrigley's testimony as to the limited
time devoted to his denial of the charges made by the four employees is readily
apparent and testimony with respect thereto is therefore discredited. I find
no evidence of arbitrary or capricious conduct by the Director with respect to
this phase of the case.,
Another charge of arbitrary, and capricious conduct aimed at the Director is
based on the following facts. - On March 6, the Board received from the Union
the detailed statement mentioned in its objections dated February 26. This
detailed statement, not served on the Respondent, consisted of 11 charges of
violative preelection conduct. Number 5 on this list contained the allegation
pertaining to Wrigley's questioning of employees concerning their Union mem-
i7 This statement is not to be construed as an intimation that I would have found the
facts differently , or recommended a different course of action.
18 "It was not incumbent upon the Board to recite all the evidence, or even all undisputed
evidence from which inferences opposed to its own might have been drawn ." N. L. R. B.
v. Swift & Co., 116 F. ( 2d) 143 , 145 (C . C. A. 8).
McMULLEN LEAVENS COMPANY 971
bership. On April 23, Naumoff, by letter, furnished Respondent with a detailed
listing of only five objections "raised by the Union with respect to the conduct of
the election." Apparently, the Director had already come to the conclusion that
the remainder of the eleven "charges" made by the Union could not be sustained:
On this list, number 4 charged that "supervisory officials * * * questioned
[employees] with respect to their Union membership." Both lists also made other
charges including religious anti-union activity. At the hearing before the under-
signed, the General Counsel offered testimony of a witness for the purpose of
proving "community religious or social activity in Keeseville which attempted
to influence the results of [the first] election." Ruling on the admissibility of this
testimony was reserved ; the objection thereto by Respondent is hereby sustained-
The Report of the Director on objections of the Union sustained only "objection
No. 4," which must be deemed to have reference to the objection bearing that
number as found in Naumoff's letter to Respondent on April 23rd, as the
Respondent was not aware of the detailed and numbered objections contained in
the Union's letter of March 6. Respondent now contends that the attempt to
prove churcli influence as afore-mentioned, coupled with a statement by the
General Counsel in a colloquy with attorneys for the Respondent dealing with
the same subject, indicates that the Director actually gave consideration to,
factors other than those contained in his report. There was no evidence to prove
such a charge. The Director's report clearly shows on its face the basis for
his action. Apparently, the Director found the other listed objections not sus-
tained, for no reference to such additional objections is made in his Report. My
responsibility herein being limited to a determination of whether or not the
Director acted arbitrarily or capriciously, it becomes wholly immaterial whether
or not, even in the mind of the General Counsel, other reasons might have existed
as a basis for the Director's action. My duty is to determine whether the facts
found and the determination made by the Director in his Report are vulnerable
to a charge of arbitrariness or capriciousness. I find that they are not, and
hereby absolve the Director of any such conduct with reference thereto.
Respondent also contends under its Fifth Defense that on July 9, it "withdrew
from and terminated its agreement and consent to the agreement for consent
election." The Respondent presumably entered into the agreement in good faith.
There was not even a suggestion or intimation, that it was induced to enter into
that contract by reason of any fraud or duress. It is further found herein that
the Agreement was not breached by the other party to that agreement, or by
the Board which was charged with the responsibility for its execution. Absent
such or similar factors, it is needless to cite authorities that the Respondent in
the midst of the proceedings and merely because it is confronted with an adverse
ruling, cannot unilaterally withdraw from or terminate that contract.
5. We turn now to the second election conducted July 22, resulting in a deter-.
urination by the Director on November 20, that the Union was the legal bargain=
ing representative of Respondent's employees.
By its Sivth and Seventh Affirmative Defenses, Respondent challenges that
determination on the following grounds: (a) that on July 18, Respondent advised
the Director "that Respondent had converted its Keeseville plant from a blouse
operation to a men's shirt operation; (b) * * * that as a result of this con.
version a necessary reduction of the number of employees was effected from 118
employees on the pay roll for the week ending January 3,n to approximately 77
ie This was the pay-roll period which the parties stipulated In the Agreement was to be
used in determining eligibility of voters.
`972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees (on July 18), and that the pay roll list for the week ending January
3, did not represent employees now eligible to vote; (c) that the Director il-
legally, arbitrarily and capriciously, directed the counting of the votes of ten
persons whose right to vote had previously been challenged on the ground that
they were permanently discharged prior to the date of the election and arbi-
trarily sustained the Union's challenge as to three other employees on the ground
that they were first employed after January 3.
(a) The Change in operations
While it is true that in the latter part of April or May, Respondent changed its
operation from the manufacture of blouses to the production of shirts, it con-
tinued to use the same employees in its later activity, though in reduced numbers.
'Thus , Blanche DeLorme, the forelady, testified as follows :
Q. (By Mr. Leland.) How many employees of those approximate hundred
who were working during the month of May-that is, the same employees-
in other words, what I am trying to get at is : Did you use the same per-
sonnel , generally, in your shirt operations as you had previously used in
your blouse operations?
A. I don't get what you mean.
Q. Did you fire-when this change in operations took place, did you fire
everybody in the factory?
A. No, we fired those that we didn't intend to take back.
Q. About how many of those were there?
A. Those ten.
Q. And the other ninety or so you maintained?
A. That's right.
Q. And they performed the work on shirts?
A. Right.
The evidence is conclusive that the blouse operators were retained to manu-
facture shirts. This is not a case where an entire new staff of employees was
hired to engage in a new and different operation. Cf. In the Matter of Mitchell
Manufacturing Co., 70 N. L. R. B. 1268.
1 find this portion of the defense to be without merit.
(b) The use of the January 3rd pay roll
The remainder of the defense, that the payroll list of January, 3 did not
represent employees eligible to vote at the second election on July 22, must be
tested by the terms of the agreement signed by Respondent. That contract
specifically provided that "The eligible voters shall be those employees * * *
who appear on the Employer's pay roll for the * * * week ending January
3, 1947. * * * If objections * * * are sustained, the Regional Director
* * * shall be empowered to conduct a new election under the terms and
provisions of this agreement." (Emphasis supplied.) In overruling the Re-
spondent's objection to the use of the January 3rd pay roll, and in sustaining the
Union's challenge to the eligibility of Emma Sullivan, Dorothy Hansen, Mabel
Ford and Edith Wray, who admittedly were hired after January 3 and did not
appear on that pay roll, the Director was giving effect, and acting pursuant to,
the agreement of the parties.
Cases cited by the Respondent, where the Board in ordering a second election
directed the use of pay-roll periods "immediately preceding the date of our
McMULLEN LEAVENS COMPANY 973
second Direction of Election" are not pertinent here. In these cases, the parties
had not agreed upon a payroll period for determining eligibility, and the Board
in its discretion, set the date for them. Thus, in the Matter of Drumsnond
Packing Co., 27 N. L. R. B. 8, the Board said :
The parties did not express their desires with regard to the selection of the
payroll period for the determination of eligibility to vote. We shall follow
our usual practice and direct that the employees of the Company eligible to
vote in the election shall be those within the appropriate unit during the
payroll period, immediately preceding the date of our Direction of Election
herein.
Here, however, by agreement, the parties "consented among themselves that
the issues as to representation should be settled in the way which the agreement
prescribed." (Sun Ship Employees Association v. N. L. R. B., supra) and that
agreement specifically provided for the use of the January 3rd pay roll in the
second election.
Even in "run-off" elections ordered by the Board, the Rules (Sec. 203.62, Series
5) provide that only employees who were eligible to participate in the original
election should be eligible to vote in the second election Thus, in the Matter of
Reed Roller Bit Co., 61 N. L R. B. 867, the Board, on May 2, 1945,
ordered a second election and authorized the use of the pay roll of September
17, 1944, a pay roll then 71/2 months old, to determine eligibility. And, in the
Matter of Jasper Wood Products Co., Inc., 75 N. L. R. B. 808, it ruled on January
14, 1948, that if, after certain challenges were disposed of, a run-off election be
necessary, "it would not promote the interests of good administration of the
Act" if deviations from the foregoing Rule were permitted. Accordingly, the
Board denied an employer's motion to establish a current pay-roll eligibility date
for the second election and authorized the use of the original pay roll, established
10 months earlier on March 15, 1947. I find, therefore, that the Director did not
act improperly in using the January 3rd pay roll in the election of July 22, or
in sustaining the Union's challenge to the four employees aforementioned, first
employed after January 3rd.
(c) The ten dischargees
The Respondent strenuously urges that the Director illegally, ttrbitraily, and
capriciously overruled the Respondent's challenge to the right of ten so-called
"dischargees" to vote at the July 22 election. The challenges were made on the
ground that these voters had been permanently discharged prior to the time they
cast their ballots. The Director, in his Report, found that they had only been,
"temporarily laid off" and were, therefore, eligible voters. It was only after the
challenged ballots were opened and counted that the Union received a majority
of the total votes cast at the election. A review of the Director's action with
respect thereto is therefore required. That review, however, like the objections
to the results of the first election (III C 4, supra), is not for the purpose of re-
weighing the evidence on the merits of the challenges. Re-examination is
restricted to a determination of whether the Director acted in an arbitrary or
capricious manner in overruling the Respondent's challenges to these voters.
Following the preparation of the Tally of Ballots on July 22 disclosing the
challenges, the Director caused an investigation of the merits thereof to be
made. The Director's Field Examiner .and Counsel for the Respondent partici-
974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pated in the investigation. All of the challenged voters were interviewed in
behalf of the Director. Testimony and affidavits were taken from the General
Superintendent, the forelady and the so-called dischargees. A large number of
affidavits were prepared by Respondent's counsel and considered by the Director
in making his Report. It is admitted that all this testimony was before the
Director when he ruled on the challenges.
The determinative issue with respect to these challenges is : Were those ten
employees permanently discharged in April, May or June, when all the severances
took place, or were they only temporarily laid off at that time. Evidence of any
alleged incompetence has no direct bearing, because Respondent had the unquali-
fied right to discharge any of its employees on any ground satisfactory to it
alone, with or without cause, so long as the discharge was not in violation of
rights guaranteed to employees under the Act. The issue here, is not why
these employees were discharged, but only whether they were in fact permanently
discharged. Testimony as to their incompetence and inefficiency is relevant only
as it may tend to corroborate the claim of Respondent that they were permanently
discharged.
In the analysis of the true nature and character of the discharge, the conduct
of the Respondent on the severance day is of primary, if not controlling, impor-
tance. Respondent, in its brief attempts to shift the focal date from the day of
separation to a later period expiring July 22, by citing cases holding that voters
who admittedly were only temporarily laid off became ineligible voters when,
on election day, it became apparent that they then had "no reasonable expectancy
of reemployment in the near future." That, however, was not the theory of
which the Respondent made its challenges, or submitted its case to the Director or
to the undersigned. The Director's report, with respect to those ten dischargees,
shows that the Respondent's challenges were made on the ground that each of
them had been permanently discharged on the day of separation, not at a later
date. Though Respondent's answer herein alleges that these voters were chal-
lenged "on the ground that they had been, permanently discharged prior to July
22, 1947," there was no intimation that by so pleading, Respondent challenged
the Director's finding as to the ground of the challenges. Indeed at the hearing
before me, counsel for Respondent in his opening statement summarized the
issue on this aspect of the case as follows :
Another category of challenges relates to ten dischargees who had been
discharged by Respondent. Respondent asserted that, at the time of the
discharge, the discharge was permanent. The union asserted that, at the
time of the discharge, the discharge was temporary, that it was a temporary
layoff. There was a question of fact involved as to whether or not it was
a temporary layoff or a permanent discharge.
To now permit Respondent to litigate, before me, new issues not presented to
the Director, or to permit it to shift its entire theory of the nature of these dis-
charges, would do violence to the agreement of the parties and orderly admin-
istrative procedure. It would also mean that I must hold that employees who
have been steadily employed for periods ranging up to 3 years can, within the
meaning of the Act, be deemed to have been permanently discharged from that
employment without ever being told that they had been so discharged. To place
a stamp of approval on such a theory, or course of conduct, would hardly tend
to minimize industrial strife which the Act was intended to obviate, nor can it
be considered as consistent with our generally accepted ideas of fair play
between employer and employee.
McMULLEN LEAVENS COMPANY 975
In accord with the foregoing analysis of the true issue involving these dis-
charges, we turn to an analysis of the evidence before the Director pertaining
thereto. All ten of these employees testified before the Director, as did the
forelady, DeLorme, who gave the final instructions to them on the day they last
actually worked for Respondent.
Blanche Pine testified that on May 7, "the forelady told her that things were
slow and that she would be called back when work picked up."
Mary Lamere testified that on April 19, "she was told by the forelady that
work was slack and that it might be available shortly thereafter. She saw the
-forelady again about two weeks later and was promised work when it was
available."
Mary Stone testified "that around the end of June, her work was caught up
and that she was told that she would be called back when work picked up."
Augusta Bigelow testified "that she last worked on April 23, but on that date
the forelady told her the Company was shifting from ladies' blouses to men's
shirts and that when work picked up, she would be called back."
Alma King testified "that she last worked on April 25; that things were slack
and that she was told she would be called back when work picked up. About
two weeks thereafter she appeared at the plant to collect her back pay and was
again told that she would be called in when there was work."
Grace Pasho testified "that her work was caught up on April 14, and that she
was told by the forelady that she would be called back when things picked up.
About six weeks thereafter she visited the forelady at her home to find out about
the work and was told that Hill, the general manager, was calling people in as
they were needed. She was never given any warning about her work."
Isabelle Sanborn testified "that she last worked on May 1, when she was told
by the forelady that she would be called back when work was available. No
complaint was made to her about her work."
Olive Perrotte testified "that on April 23, the forelady approached her and
told her she'd have to lay her off because work was slack but that as soon as
things picked up she would be sent for. The following week she appeared at the
plant for her back pay and was again told that she would bQ advised when to
report. No complaint was made about her work."
Joan Tellier testified "that on or about April 26, her work was caught up and
that the forelady told her that she would be called back when work was avail-
able. There was never any complaint about her work. She was not paid off
on the date when she was laid off."
Rose Liberty testified "that she last worked on April 25 that she was then
told by the forelady that there would be work in about three or four weeks. The
forelady took her telephone number in the presence of Isabelle Sanborn. There
was never any warning given to her about her work."
Iva Stanley testified "that on April 23 the forelady came over and told her
that she would have to lay her off because of lack of work. She inquired as to
how long she would be out, and was told that it would probably be for about three
or four weeks. Early in June, Mrs. Stanley wrote the forelady about her job.
On June 24, the forelady replied that work was very slow and that she was
unable to say yet when we will be able to call you and all the rest of the girls
back . Will let you know as soon as needed."
General Superintendent Hill, who was in complete charge of Respondent's
factory operations, in an affidavit prepared by Respondent's counsel, sub-
mitted to and considered by the Director in making his Report, said, "I later RD
20 This time was never fixed.
976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
learned that, in violation of my instructions, the forelady did not explicitly inform
the discharged employees that the discharge was permanent."
Based on this testimony, the Director found that these 10 employees were only
temporarily laid off and therefore eligible to vote at the July 22 election." The
burden of proving that this finding was arbitrary and capricious rests on the
Respondent, and it had an opportunity to do so before the undersigned. DeLorme
was questioned by Respondent 's counsel as to what she told these dischargees at
the time of separation . Her testimony corroborates that of the 10 dischargees
as found by the Director. Not a scintilla of evidence was offered that any of
these employees were ever told, at any time, that they were permanently dis-
charged.
If any clinching episode were needed to negate Respondent's contention that
these employees were permanently discharged in April, May or June, as alleged,
such proof is provided by DeLorme's letter to Mrs. Stanley written on June 24.
In this letter she said : "As for work, it is going very slow and cannot say yet
when we will be able to call you and all the rest of the girls back. Will let you
know as soon as needed."
At the hearing before me, DeLorme testified that her reference to "all the
girls" was intended to describe the "ten dischargees." She further testified that
tit the time she wrote the letter, June 24, the change-over from blouses to shirts
was taking place in the factory and that work was then, in fact, slow.
Respondent and DeLorme attempted to minimize the significance which must
be attached to this letter by belatedly urging that DeLorme was reluctant to im-
part the "bad news" to fellow townspeople. However, it appeared from the
testimony before the Director, that DeLorme was operating under no such
restraint on June 17. On that day, 1 week before she wrote the foregoing letter,
she informed Susan Weed that, because the general manager had found her work
unsatisfactory, he "had given her (DeLorme) instructions to let Mrs. Weed go on
the 21st." 22 -
The undersigned gave especially careful attention to the testimony of DeLorme
at the hearing. Based on her general demeanor and attitude on the stand, and
the Susan Weed incident, I find it impossible to believe that DeLorme was the
kind of person who would have had any hesitation in telling these 10 employees
that they were permanently discharged if she desired to so discharge them, or
had been instructed to do so. For the foregoing reason, and because of her con-
tradictory testimony in-other matters, I discredit her testimony in the foregoing
respect.
Further evidence to demonstrate that the company knew how to make effective
its intent to permanently discharge employees is provided in the case of Barbara
Wilkins. The latter's vote was challenged by Respondent on the ground that
"she was discharged around July 1, 1947." In ruling on that challenge, the
Director, in his Report stated :
She testified that she was laid off in April along with other employees.
Several times thereafter, she called the plant and was informed by the fore-
21 Respondent complains that the field examiner who participated in the investigation
used a subjective test in interviewing the 10 dischargees. There is no evidence that the
Director employed such a test. His Report contains objective findings on the nature of
the discharges.
za Based on this testimony , the Director sustained the Respondent's challenge to Susan
Weed 's ballot on the ground that she "was discharged by the Company ." In addition,
Hill testified before me , that in the period from December 1946 to February 1947, two or
three other employees were " fired" for Inefficiency.
McMULLEN LEAVENS COMPANY '977
lady and by Wrigley, the foreman, that she would be called back when needed.
On June 20, 1947 she wrote to the general manager about her job. Shortly
thereafter, she then received a telephone call from the foreman who told her
that her job was terminated. The general manager testified that he directed
the foreman to call Mrs. Wilkins. Tie undersigned finds that Mrs. Wilkins
was discharged by the Company on or about Jply 1, 1947 and sustains the
challenge to her ballot.
Based on all the evidence in the case, I conclude that the Director was not
guilty of arbitrary or capricious conduct in overruling Respondent's challenges
to the ballots of these so-called "ten dischargees."
6. The Eighth Affirmative Defense attacks the Director' s ruling in sustain-
ing the Union's challenge of Jennie Buckley on the ground that she had volun-
tarily terminated her employment. The evidence pertaining to this termination,
as augmented in the hearing before me, might well lead two triers of fact to
reach different conclusions. However, I find nothing in the record to substantiate
the charge of arbitrariness directed to the finding on this challenge.
7. The Ninth and Tenth Affirmative Defenses plead that the Director's Report
cn Challenges was served by mail on Respondent on November 6; that under the
Board's Rules and Regulations the time to file exceptions to said Report did not
expire until November 17; that in violation of said rules, the Director ordered
the ballots, to which challenges had been overruled, to be opened and counted on
November 12, five days before the expiration of Respondent's time to file Excep-
tions ; that the Board refused to consider these Exceptions. The fallacy of this
reasoning lies on the erroneous insistence of Respondent that it was entitled to
invoke the post-election procedure employed by the Board in certifying a bar-
gaining representative. As has already been pointed out in the discussion of the
Fourth and Fifth Affirmative Defenses, supra, the decision of the Director as
contained in his Report was, by the Agreement, a decision not subject to direct
review, by Exceptions, either to the Director or the Board . In the matter of
River Raisin Paper Co., 79 N. L. R. B. 1348, upon which Respondent relies, is not
in point. While it is true that the Board there set aside an election because the
Director had opened and counted ballots before the parties had been given an
opportunity to file exceptions to the Report on Challenges, footnote 1 of that
decision makes it clear that the Board itself was there considering an election
under Section 203.48 (b) which specifically provides for the filing with, and con-
sideration by, the Board of such exceptions. In the instant case, the election
was held under Section 203.48 (a) and no provision is made therein for Excep-
tions. These affirmative Defenses are found to be without merit.
8. The Eleventh Affirmative Defense pleads in general terms that "the afore-
-said proceedings, determinations, reports," etc. "were made in violation of
the Administrative Procedure Act of 1946." The Respondent has pointed to no
specific section of that Act which it claims has been violated, nor is the point
argued in its brief. The burden of proving such a violation rests with Respond-
ent. I find it has not been sustained.
9. The Twelfth Alftrmative Defense alleges that the Union did not comply
with the filing requirements of Section 9 (f) and 9 (h) of the Act, as amended,
"until on or about the middle of October, 1947." "The determination of com-
pliance with these requirements is an administrative one to be made by the
Board itself, and is not litigable by the parties." In the Matter of The Baldwin
Locomotive Works, 76 N. L. R. B. 922, In the Matter of Lion Oil Co., 76 N. L. R. B.
565. In any event Respondent' s position , that such compliance must have been
978- DECISIONS OF NATIONAL, LABOR RELATIONS BOARD
accomplished on or prior to August 22, 1947, the effective date of the amend-
ments, is. without merit. The amendments do not so provide. They operate
only in future, so as to deprive a Union of resort to remedies granted by the
Act until'it has complied with the requirements of the Amendments. N. L. R. B.
v.•Brozen et al, 166 F. (2d) 812 (C. C. A. 2) ; N. L. R..B. v. Gate City Cotton Mills,
167 F. (2d) 647 (C. C. A. 5). Here, the charge was filed March 18, 1948, almost
6 months after the Union had admittedly complied with the amendments.
10. I find that the Director was not guilty of arbitrary or capricious conduct
with respect to any of the matters pleaded in Respondent's Answer. As to all
other defenses, I find them not sustained for the reasons heretofore set forth.
11. It is admitted that the Respondent refused to bargain with the Union.
Its defense and its reasons for such refusal have been considered and found to
be without merit. I find, therefore, that on January 23, 1948, and at all times
thereafter, the Respondent refused to bargain collectively with the Union as
the exclusive representative of its employees, in an appropriate unit, and that the
Respondent has thereby interfered with, restrained, and coerced, and is inter-
fering with, restraining, and coercing its employees in the exercise of the rights
guaranteed in Section 7 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
connection 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 commerce and the free flow of commerce. -
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor prac-
tices, I shall recommend that it cease and desist therefrom and that it take
certain affirmative action designed to effectuate the policies of the Act. Having
also found that the Union represented a majority of the employees in the
appropriate unit and that the Respondent refused to bargain collectively with it;
it will be recommended that the Respondent, upon request, bargain collectively
with the Union.
Upon the basis of the above findings of fact and upon the entire record in the
case, I make the following : -
CoNCLusIoNs OF LAW
1. Playthings, Jewelry and Novelty Workers International Union-CIO, is a
labor organization within the meaning of Section 2 (5) of the Act.
2. All production and maintenance employees of the Respondent at its factory
at Keeseville, New York, excluding foremen, foreladies, supervisory employees
with authority to hire, promote, discharge, discipline, or otherwise effect changes
in the status of employees, or effectively recommend such action, constitute a
unit appropriate for the purposes of collective bargaining within the meaning
of Section 9 (b) of the Act.
3. Playthings, Jewelry and Novelty Workers International Union-CIO, on
November 20, 1947, was, and at all times thereafter has been, the exclusive repre-
sentative of all the employees in such unit for the purposes of collective bargain-
ing within the meaning of Section 9 (a) of the Act.
4. By refusing on January 23, 1948, and at all times thereafter, to bargain
collectively with Playthings, Jewelry and Novelty Workers International Union-
MCMULLEN LEAVENS COMPANY 979
CIO, as the exclusive representative of its 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 the aforesaid refusal to bargain, the Respondent has interfered with,
restrained, and coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act, and has thereby 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.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, I hereby
recommend that the Respondent, McMullen Leavens Company, its officers, agents,
successors, and assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with Playthings, Jewelry and Novelty
Workers International Union-CIO, as the exclusive representative of all the pro-
duction and maintenance workers employed at its Keeseville, New York plant,
exclusive of foremen, foreladies and supervisory employees with authority to
hire, discharge, discipline or otherwise effect changes in the status of employees,
or effectively recommend such action ; and
(b) In any other manner interfering with the efforts of Playthings, Jewelry
and Novelty Workers International Union-CIO, to bargain collectively with it in
behalf of the employees in the aforesaid appropriate unit.
2. Take the following affirmative action, which the undersigned finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with Playthings, Jewelry and Novelty
Workers International Union-CIO, as the exclusive representative of all of its
employees in the above-described unit, with respect to wages, rates of pay, hours
of employment, or other conditions of employment and, if an understanding is
reached , embody such understanding in a signed agreement ;
(b) Post at its factory at Keeseville, New York, copies of the notice attached
hereto and marked Appendix A. Copies of said notice, to be furnished by the
Regional Director for the Second Region, shall, after being duly signed by the
Respondent's representative, be posted by the Respondent immediately upon
receipt, thereof, and maintained by it for a period of sixty (60) consecutive
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 ; and
- (c) Notify the Regional Director for the Second Region in writing twenty (20)
days from the date of the receipt of this Intermediate Report what steps the
Respondent has taken to comply herewith.
It is, further recommended that, unless the Respondent shall, within twenty
(20) days from the date of the receipt of this Intermediate Report, notify said
Regional Director in writing that it will comply with the foregoing recommenda-
tions, the National Labor Relations Board issue an order requiring the Respondent
to take such action.
As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board, Series 5, effective August 22, 1947, as amended August
18, 1948, any party may, within twenty (20) days from the date of service of
the order transferring the case to the Board, pursuant to Section 203.45 of said
980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Rules and Regulations, file with the Board, Rochambeau Building, Washington
25, D. C., an original and six copies of a statement in writing setting forth such
exceptions to the Intermediate Report or to any other part of the record or pro-
ceeding (including rulings upon all motions or objections) as he relies upon,
together with the original and six copies of a brief in support thereof ; and any
party may, within the same period, file an original and six copies of a brief in
support of the Intermediate Report. Immediately upon the filing of such state-
ment of exceptions and/or briefs, the party filing the same shall serve a copy
thereof upon each of the other parties. Proof of service on the other parties of
all papers filed with the Board shall be promptly made as required by Section
203.85, as amended. As further provided in said Section 203.46, should any party
desire permission to argue orally before the Board, request therefor must be
made in writing to the Board within ten (10) days from the date of service of
the order transferring the case to the Board.
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations, the findings, conclusions, recommendations, and recom-
mended order herein contained shall, as provided in Section 203.48 of said Rules
and Regulations, be adopted by the Board and become its findings, conclusions,
and order, and all objections and exceptions thereto shall be deemed waived for
all purposes. '
Dated at Washington, D. C., this 7th day of October 1948.
APPENDIX A
NOTICE TO ALL EMPLOYEES .
DAVID LONDON,
Trial Examiner'.
Pursuant to the Recommendations of a Trial Examiner 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 BARGAIN collectively upon request with Playthings, Jewelry and
Novelty Workers International Union-CIO, as the exclusive representative
of all employees in the bargaining unit described herein with respect-to
wages, rates of pay, hours of employment,.or other terms or conditions of
employment, and if an understanding is reached, embody such understanding
in a signed agreement. The bargaining unit is:.
All the production and maintenance workers employed at its Keeseville,
New York plant, exclusive of foremen, foreladies and supervisory employees
with authority to hire, discharge, discipline or otherwise effect changes in
the status of employees, or effectively recommend such action.
WE WILL NOT in any manner interfere with the efforts of the above-named
union to bargain with us or refuse to bargain with said union as the exclu-
sive representative of all of our employees in the above-described appro-
priate unit.
MCMULLEN LEAVENS COMPANY,
Employer.
Dated ------------------------ By -----------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof , and must
not be altered , defaced , or covered by any other material.