Oak Flooring Co., Inc.

National Labor Relations Board - Board Decisions

Mar 10, 1955

111 N.L.R.B. 906 (N.L.R.B. 1955)

906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
proposal to solve his difficulties , real or imagined , by discharging all the employees
as Lansaw had resolved to do on the evening of March 9. Accordingly, the complaint
should be dismissed.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The Respondents are engaged in commerce within the meaning of Section 2
( 6) and (7) of the Act.
2. The Union is a labor organization within the meaning of the Act.
3. The Respondents have not engaged in any unfair labor practices within the
meaning of Section 8 (a) (1) and -(3) of the Act.
[Recommendations omitted from publication.]
OAK FLOORING COMPANY, INC. and UNITED FURNITURE WORKERS OF
AMERICA, CIO. Case No. 11-CA-739. Marcia 10, 1955
Decision and Order
On October 28, 1954, Trial Examiner John C. Fischer issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent and the
General Counsel filed exceptions to the Intermediate Report and sup-
porting briefs, and the Respondent requested oral argument. The
request for oral argument is hereby denied because the record and the
briefs, in our opinion, adequately present the issues and the positions
of the parties.'
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in the
1 On December 29, 1954, the Respondent filed a motion asking the Board to reopen the
record to receive certain documents, and to give consideration to the record as so enlarged
and enter such orders as may be appropriate On January 6, 1955, the General Counsel
filed an answer opposing the granting of the motion.
The documents in question include correspondence relating to a request made on Decem-
ber 14, 1954, after the expiration of the Union's certification year, by Wade E. Vannoy, Jr.,
on behalf of some of the Respondent's employees, for a decertification election in the unit
involved herein, and a representation petition filed by the Respondent by letter dated
December 24, 1954. The Board's records in Case No. 11-RM-36 show that the Respondent's
petition was dismissed by the Regional Director on January 3, 1955, and that on February
9, 1955, the Board, on appeal, sustained the Regional Director's ruling. The Board's
records further show that on January 24, 1955, Joe Lawrence, one of the Respondent's
employees, filed a petition for a decertification election in the same unit (Case No.
11-RD-55) This petition was dismissed by the Regional Director on January 31, 1955;
and on March 7, 1955, the Board, on appeal, sustained the Regional Director's ruling.
As the documents offered by the Respondent have no bearing upon whether the Respond-
ent unlawfully refused to bargain with the Union during the certification year, we agree
with the General Counsel that they are immaterial to the issues in this case. Accord-
ingly, the Respondent's motion to reopen the record is hereby denied.
111 NLRB No. 152.
OAK FLOORING COMPANY, INC. 907
case-and hereby adopts the findings, conclusions, and recommendations
of the Trial Examiner except insofar as they are inconsistent with the
findings, conclusions, and order set forth below.
1. The Trial Examiner found that the Respondent violated Section
8 (a) (5) and (1) of the Act by refusing, on and after April 2, 1954,
to bargain collectively with the Union. The Respondent contends
that it was under no obligation to bargain because the employees had
clearly and unequivocally repudiated the Union.
The record shows, as set forth in the Intermediate Report, that on
November 13, 1953, the Union, in a Board-ordered election, received
42 out of the 69 votes cast. On November 16, only 3 days later, Joe
Lawrence, one of the employees involved, retained Wade E. Vannoy,
Jr., an attorney, to represent him and other employees in an attempt
to repudiate the Union. On November 20, Vannoy filed with the
Regional Office a decertification petition signed by Lawrence, and a
second petition, signed by 62 of the 77 employees who were eligible to
vote in the election, asking the Regional Director to withhold certifica-
tion of the Union. The Regional Office, on the same day, notified
Vannoy that the decertification petition was untimely under the pro-
visions of Section 9 (c) (3) of the Act and would not be processed.
No objections to the election were filed, and on November 25, 1953,
the Union was certified.
Thereafter, on several occasions, the Union requested bargaining
conferences. Two meetings were held, but no bargaining took place.
On April 2, 1954, in reply to a request for a meeting, the Respondent
wrote to the Union, referring to the decertification petition, and ask-
ing whether it would not "be wiser under the circumstances to defer
consideration of negotiations until such time as it appears that our
employees desire to have your union represent them." On April 15,
in reply to a further request, it wrote that it did not "feel justified
in meeting with you for the purpose of negotiating a contract cover-
ing our employees a majority of whom you obviously do not represent."
In finding that the Respondent's refusal to bargain constituted a
violation of Section 8 (a) (5), the Trial Examiner relied on the Board's
rule that, in the absence of unusual or special circumstances, a Board
certification of a bargaining representative must be honored for a rea-
sonable period, usually at least a year following the certification, de-
spite evidence of repudiation or loss of majority by such bargaining
representative.2 Recently, the Supreme Court has approved this rule
in Ray Brooks v. N. L. R. B.3 There is no evidence of unusual cir-
cumstances in the present case that would justify an exception to this.
2 Henry Heide, Inc., 107 NLRB 1160, enfd . 219 F. 2d 46 ( C. A. 2) ; The Baker and Taylor
Co., 109 NLRB 245.
3 348 U. S. 96.
908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rule.4 We therefore agree with the Trial Examiner that the Respond-
ent's refusal to bargain with the Union on and after April 2, 1954,
constituted a violation of Section 8 (a) (5) and (1).
2. The complaint further alleged that the Respondent violated Sec-
tion 8 (a) (5) of the Act by laying off 13 employees on the day of the
election, without prior notice to or consultation with the Union. The
Trial Examiner found that the failure to discuss the layoff with the
Union was not unlawful because the Union, at the time, had not been
certified, and the Respondent 's decision with respect to the layoff had
been made before the election, was based upon economic reasons, and
was carried out in good faith. The General Counsel does not deny that
the layoffs were proper but excepts on the ground that the Respondent
should have consulted with the bargaining agent prior to taking any
action.
Because of the Respondent 's unlawful refusal to bargain on and
after April 2, 1954, we are ordering it to bargain with the Union on
request. There is no issue here as to the necessity for or the legality of
these layoffs . The sole issue is whether or not the failure to discuss
them with the Union was a refusal to bargain. As our remedial order
would in any event be the same , we find it unnecessary to pass upon the
question of whether or not the Respondent was under an obligation
to bargain during the period between the election and the certification.
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Oak Flooring Company,
Inc., West Jefferson, North Carolina, and its officers, agents, successors,
and assigns, shall :
1. Cease and desist from refusing to bargain collectively with
United Furniture Workers of America, CIO, as the exclusive repre-
sentative of all production and maintenance employees at its establish-
ment at West Jefferson, North Carolina, including lumber graders,
truckdrivers, and watchmen-firemen, but excluding salesmen, office
clerical employees, professional employees, and supervisors as defined
in the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with United Furniture
Workers of America, CIO, as the exclusive representative of its em-
* The Board has previously held that the mere filing of a petition during the certifica-
tion year is not an unusual circumstance that will relieve an employer from his obligation
to bargain with the certified agent Henry Heide, Inc., supra.
We note, too, that the petition signed by the 62 employees stated merely that they did
not desire to be represented by the Union because it appeared, in view of the sharply di-
vided vote, that "such representation would cause ceasless friction and ill will among said
employees," and they believed it "would work irrepairable [sic] harm to their relations
one with the other."
OAK FLOORING COMPANY, INC. 909
ployees in the appropriate unit described above with respect to rates
of pay, wages, hours of employment, or other conditions of employ-
ment, and, if an understanding is reached, embody such understanding
in a signed agreement.
(b) Post at its place of business in West Jefferson, North Carolina,
copies of the notice attached hereto and marked "Appendix A." e
Copies of said notice, to be furnished by the Regional Director for the
Eleventh 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 such notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for the Eleventh Region, in writ-
ing, within ten (10) days from the date of this Order, what steps the
Respondent has taken to comply herewith.
6 In the event that this Order is enforced by decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order" the words
"Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
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, we hereby notify our employees that :
WE WILL, upon request, bargain collectively with United Furni-
ture Workers of America, CIO, as the exclusive representative of
all employees in the unit described below with respect to rates of
pay, wages, hours of employment, or other conditions of employ-
ment, and, if an understanding is reached, embody such under-
standing in a signed agreement.
The bargaining unit is:
All production and maintenance employees at our establish-
ment at West Jefferson, North Carolina, including lumber
graders, truckdrivers, and watchmen-firemen, but excluding
salesmen, office clerical employees, professional employees,
and supervisors as defined in the Act.
OAK FLOORING COMPANY, INC.,
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.
910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon a charge dated April 23, 1954, filed by United Furniture Workers of
America, CIO, the General Counsel of the National Labor Relations Board I by the
Regional Director for the Eleventh Region (Winston-Salem, North Carolina), on
July 23, 1954, issued an amended complaint against Oak Flooring Company, Inc.,
herein referred to as the Respondent or the Company, alleging that the Respondent
had engaged in and was engaging in unfair labor practices within the meaning of
Section 8 (a) (1) and (5) and Section 2 (6) and (7) of the National Labor Rela-
tions Act, as amended, 61 Stat. 136, 65 Stat. 601, herein called the Act. Copies of
the charges, complaint, amended complaint, and notice of hearing were served upon
the other parties to the proceeding.
With respect to unfair labor practices the amended complaint alleges in substance
that from on or about November 13, 1953, the Respondent refused and at all times
thereafter has continued to refuse to bargain collectively with the United Furniture
Workers of America, CIO, herein referred to as the Union, as the duly designated
collective-bargaining representative of employees of the Respondent in an appropriate
unit. The Respondent in its answer dated July 27, 1954, admits certain jurisdictional
allegations, but denies the commission of any unfair labor practices and specifically
denies that on September 2, 1953, or thereafter, the Union has been the exclusive
collective-bargaining representative of the employees in the unit 2 described in the
complaint.
Pursuant to notice, a hearing was held at Greensboro, North Carolina, before the
Trial Examiner, duly designated by the Chief Trial Examiner. All parties were
represented at the hearing and were afforded full opportunity to be heard. In lieu of
calling witnesses to the stand, all parties agreed to submit their respective contentions
in form of a stipulation of the facts and conclusions of law, reserving the right to
register their objections during oral argument to adverse contentions and contrary
constructions of portions of the offered stipulation, these in turn to be resolved by the
Trial Examiner in his Intermediate Report. After the introduction of the formal file,
the stipulation and certain exhibits were received for purposes of identification and
admitted subject to the Trial Examiner's rulings to exclude on objection of respective
counsel.
The stipulation (General Counsel's Exhibit No. 2-A) consists of 16 numbered
paragraphs and was offered to the Trial Examiner "without prejudice to the rights
of any party to object to the materiality or relevancy of any of the facts or matters
stipulated herein or to present at the hearing in this matter any other or further
evidence not inconsistent with this stipulation." The Respondent objects to the in-
clusion of paragraphs numbered 2, 3, 5, and 7 on the grounds that such paragraphs
are irrelevant, immaterial, and prejudicial. The General Counsel objects to the in-
clusion of paragraphs numbered 9, 10, 11, and 16 on the grounds that said paragraphs
are irrelevant and immaterial. General Counsel also objects to General Counsel's
Exhibits Nos. 2-J through 2-P for the reason that they are immaterial. This method
of offering a stipulation may be unusual, but it is not improper when the sole purpose
is to raise for adjudication a question of law. Thus, the undisputed portions of the
stipulation consist of paragraphs numbered 1, 4, 6, 8, 12, 13, 14, and 15, and Gen-
eral Counsel's Exhibits Nos. 2-B through 2-I. For reasons which will appear and
be developed later, the entire stipulation is considered germane to the proper reso-
lution of this case, and is attached herewith and made a part hereof-entitled Appen-
dix B.
Upon the entire record, and from the evidence admitted, the Trial Examiner makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is now, and has been at all times material herein, a North Carolina
corporation, maintaining its principal office and place of business at West Jefferson,
1 The term General Counsel as used herein includes the attorney representing the Gen-
eral Counsel at the hearing. The National Labor Relations Board is referred to as the
Board.
All production and maintenance employees at the Respondent's establishment at Jeffer-
son, North Carolina, including lumber graders, truckdrivers, and watchmen-firemen, but
excluding salesmen, office and clerical employees, professional employees, and supervisors
as defined by the Act.
OAK FLOORING COMPANY, INC. 911
North Carolina, where it is engaged in the manufacture and sale of oak flooring. The
Respondent, in the course and conduct of its business operations during the past
year, which period is representative of all times material herein, manufactured and
sold finished products valued in excess of $600,000 of which approximately 10 per-
cent in value was sold and shipped to customers outside the State of North Carolina.
The Respondent concedes that at all times here relevant it has been engaged in com-
merce within the meaning of the Act and the Trial Examiner so finds.
II. THE LABOR ORGANIZATION INVOLVED
United Furniture Workers of America, CIO, is a labor organization within the
meaning of the Act.
III. THE REFUSAL TO BARGAIN
A. Sequence of events
There are 2 issues involving the charge of refusal to bargain to be decided in this
case: The first concerns the layoff of 13 employees on November 13, 1953, and the
second is whether the Company has refused to bargain collectively with representa-
tives of its employees since November 13, 1953, and subsequently, until the present
time.
On September 2, 1953, the Union by its International representative, E. A. Fergu-
son, wrote the Company a letter (General Counsel's Exhibit No. 2-B) stating that a
substantial majority of the employees had selected the Union to be their bargaining
agent in all matters pertaining to rates of pay, hours of work, and other conditions
of employment, and requested a conference to arrange for negotiations of a collective-
bargaining agreement . Next, on September 9, the Union petitioned the Board for
certification as representative of all production and maintenance employees pursuant
to Section 9 (a) and (c) of the Act. A hearing on the petition was held on October
1, and an election was ordered by the Board for November 13. The Company on
October 2 addressed a letter to its employees advising them that the Board would
probably direct that an election be held in the near future. The Company stated that
it was opposed to this Union and cited as reasons that the employees "had been mis-
led by wild promises as to what someone else would do for you with our money; and,
incidently, this Company barely broke even last year." Out of an approximate num-
ber of 77 eligible voters, 42 votes were cast for the Union and 27 votes cast against
the Union-total 69. The Board hearing officer certified that the balloting was fairly
conducted and that all eligible voters were given an opportunity to vote in secret.
However, 3 days after the election, on Monday, November 16, employee Joe Law-
rence hired a local attorney, Wade E. Vannoy, Jr., to represent himself and other
employees in an effort to repudiate the Union and to undo the action resulting from
the Board election. To this end Vannoy prepared two petitions designed to decertify
the Union as the collective-bargaining agent for the employees, citing as reasons that
in view of the sharply divided vote it appeared that such representation would cause
ceaseless friction and ill will and would work irreparable harm in their interrelations
which theretofore had been harmonious. The petition dated November 19 con-
cluded with a request to the Board that a certification not be issued. Some 60 of
the 71 employees canvassed by Lawrence signed this petition which was received by
the Board on November 20-1 week after the election and nearly a week before the
Board, on November 25, certified the Union.
In response to this petitioning action, on November 20, William R. Magruder,
Board field examiner , replied to Attorney Vannoy as follows:
We have before us the petition signed by Mr. Joe Lawrence, and transmitted
to this office with your letter of November 19, 1953.
Your attention is invited to Section 9 (c) (3) of National Labor Relations
Act, which provides that no election shall be directed in any bargaining unit or
any subdivision within which, in the preceding 12-month period, a valid election
shall have been held.
Since an election was held in Case 11-RC-571, involving the same employees
intended to be covered by Mr. Lawrence's petition, and since the period for filing
objections as provided by the Board's rules and regulations has not yet expired,
we will not process your petition at this time. Moreover, in the event that a
certification of representatives issues as a result of this election, we would there-
after be prevented from processing a petition for the 12-month period prescribed
in the previously cited Section of the Act. [Emphasis supplied.]
Thus the matter remained virtually in "status quo ante" or until late in March
when Respondent's present attorneys, Brooks, McLendon, Brim , and Holderness, took
912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
over the case from the Company's former counsel, E. F. Upchurch, who had been,
incapacitated with serious illness. In this connection , Respondent counsel, in his:
argument to the Trial Examiner , commented on Vannoy 's efforts: "So the Board
says to counsel for these employees , `We can't process your petition now because we
have not issued a certificate and as soon as we issue the certificate we can't process
it because it has issued.' So that with that word from the Board to a general practi-
tioner in West Jefferson `he gave up the ghost ' as far as he was concerned "
However, on December 12, Union Representative Floyd Buckner contacted Re-
spondent Counsel Upchurch and requested a meeting for the purpose of negotiating
a collective -bargaining agreement . On December 17 this meeting took place but
was fruitful only of a statement of the Company 's position that it had heard that
an RD petition had been filed by employees and it wished to talk to Vannoy before
beginning bargaining conferences . Thereafter , due to illness of Attorney Upchurch,
attempts to meet for the purpose of bargaining were unsuccessful until March 10,
1954. At that meeting, Mr. Todd Gentry, Respondent's secretary-treasurer, met
and agreed that unless Attorney Upchurch recovered in the near future, Respondent
would hire other counsel-which it did.
B. The correspondence
The sequence of events is illustrated by the following correspondence. On March
29, 1954, W. I. Smith, International representative , addressed the following letter to
Todd Gentry of the Company:
You will undoubtedly recall that when I met with you to attempt to negotiate
a contract between your Company and our Union on March 10th in West
Jefferson, you informed me that your attorney could not be present at that
time because of illness and that you would like to have him present for such
negotiations.
You also stated at that time that you expected your attorney to be available
within a few days, otherwise you would employ another lawyer and contact me
for another conference date.
It has been 19 days since that conference and I have not as yet heard from
you. I think you will agree with me that this has certainly been amply long
enough time for you to have made some arrangements in this matter.
This is to request a conference for the purpose of negotiating a collective
bargaining contract. I suggest Thursday of this week at 2 p. m. in West
Jefferson , please advise me as to whether or not this is satisfactory to you.
Gentry replied to his letter on April 2 as follows:
As you know, the attorney that represented this Company during the election
period has found it necessary to resign his connection with the case because of
illness. We have recently employed other counsel to advise us in labor matters
and have had an opportunity to give them a full statement of the events that
have taken place.
As you know, soon after the election was held an overwhelmning majority
of the employees voluntarily signed a petition stating that they did not desire
to be represented by your Union and asked that the election be set aside. We
are given to understand that approximately 90 percent of the employees signed
this petition . It was filed with the National Labor Relations Board , and you
were notified of the petition.
Our labor counsel has explained the provisions of the Taft-Hartley Act to
us, along with various court decisions interpreting that Act, and would it not be
wiser under the circumstances to defer consideration of negotiations until such
time as it appears that our employees desire to have your Union represent them?
[Emphasis supplied.]
Floyd Buckner , district director , on April 12, 1954, wrote the following letter
to Mr. Gentry:
I have before me your letter of April 2nd to our representative Mr. W. I.
Smith. This is to advise you that the Union insists your Company meet with
representatives of the Union for the purpose of negotiating a contract covering
wages, hour of employment , and other conditions of employment for those of
your employees in the certified bargaining unit. The Union suggests Wednes-
day, April 21 at 2 p. m. as the date and time for our next meeting.
Please advise if this date and time is satisfactory , and if not the earliest date
that will be satisfactory . Also advise if you would prefer to meet the Union
at the Colvard Hotel as previously.
OAK FLOORING COMPANY, INC. 913
Mr. Todd Gentry on April 15, 1954, replied to Mr. Buckner as follows:
We have received your letter of April 12 in which you advise that you have
sent our letter of April 2 to your representative, W. I. Smith.
Your letter fails to take into consideration the wishes of the overwhelming
majority of our employees. You do not even mention the fact that your Union
was repudiated by more than 90% of the employees immediately after the
election. In view of this direct expression of feeling on the part of so many
of our employees, we are unwilling to consider that a majority of our employees
desire that we recognize you as their representative unless and until a contrary
intent has been shown. Under the circumstances, we do not feel justified in
meeting with you for the purpose of negotiating a contract covering our em-
ployees a majority of whom you obviously do not represent. [Emphasis
supplied.]
C. The evidentia, y rule
In brief recapitulation, the General Counsel predicates his case on the theory
that a request to bargain was made by the Union's letter and petition of September
2 and 9 and confirmed by affirmative union vote on the forenoon of November 13
when the tally of ballots showed the union majority; that the Respondent in face
of these facts nevertheless laid off 13 employees that very afternoon without notify-
ing their bargaining representative, thereby committing a fundamental violation of
8 (a) (5) by unilaterally changing the hours and conditions of employment. Thus,
he contends that the refusal to bargain culminated on November 13. On this basis,
he contends that the portions of the stipulation and proffered exhibits, to which he
objects, are inadmissible, being immaterial and irrelevant. I find, however, that the
matter cited has probative value in these circumstances and is therefore relevant,
and further that the offered evidences are directed to prove a probandum, i. e., the
time of the alleged refusal to bargain, which is properly in issue, and accordingly
is material. The same ruling is applicable to Respondent's objections.
D. The layoff
There is no gainsaying the fact that the Company, a small flooring manufacturer
in a remote area, had had no prior history of union activity, nor was it in an envia-
ble business situation in the fall of 1953. In its letter to its employees of October
2 the Company stated that it had barely broken even. In his argument Counsel
Brooks urged that "business conditions with the Respondent were bad and were
worsening during this period. Its inventories were accumulating and it could not,
in its business judgment, continue to make more finished products until it could sell
some that it had. It made a decision some time before November 6th that it had
to cut down on its payroll cost; and it determined to lay off 13 employees. It shows
the 13 jr. [junior] employees plantwide. Friday is the end of the week. These 13
employees were laid off at the end of their workday on Friday, November 13th."
These facts are not disputed by the Union, nor were they alleged by General Coun-
sel, in the original complaint of July 19, as being violations of 8 (a) (1) and (5)
although he does so charge in his amended complaint of July 23. Respondent con-
tends that this was an afterthought. The Union does contend, however, that this
layoff was a bargainable issue after their letter of September 2 claiming majority
representative status, which issue should have been submitted to the Union before
action was taken, and, not having been so submitted, constitutes a violation of Sec-
tion 8 (a) (5). The Company, on the other hand, contends that the decision was
reached many days prior to the election, that the Union had not established its claim
of majority status, that the election had not been conducted by the Board nor had
the Union been certified as the bargaining representative, and finally, that it was
under no obligation to notify or consult with the Union concerning its action under
these circumstances because the Company and the Union were not in the process
of bargaining.
This was not a consent election, and there is no question of bargaining in bad
faith. Sixty-two of seventy-one uncoerced employees importuned, simply signed the
petition to repudiate the prior action and set aside the election held 3 days previ-
ously, but the Board certified the Union on the 42-27 basis on November 25. The
Respondent contends that the facts in the case present special and unusual circum-
stances which require a redetermination of the bargaining representative question
and that the Company was justified in suspending bargaining negotiations. In light
of Board and court decisions, this defense is unavailable and the theory untenable,
when applied to these facts. There are no special circumstances in this case similar
to those in cases where the Board has found special circumstances justifying a fail-
914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ure to honor a certification during the "certification year ." Special circumstances
have been found where the Union representing the employees was dissolved (Pub-
lic Service Gas and Electric Company, 59 NLRB 325 ), where the bargaining repre-
sentative switched its affiliation from an International union to another so that the
identity of the bargaining agent was doubtful (Carson Pirie Scott, 69 NLRB 935),
and where the number of employees in the bargaining unit doubled or quadrupled
in the space of a year ( Westinghouse Electric Company, 38 NLRB 404).
E. Date of refusal
The refusal to bargain , in this case , arose on April 2, 1954, when the Company,
by Secretary-Treasurer Gentry, wrote the Union that soon after the election was
held an overwhelming majority voluntarily signed a petition stating that "they did
not desire to be represented by your union " and asked that the election be set aside,
assigning as their legal reason that "our labor counsel has explained the provision of
the Taft-Hartley Act to us, along with various court decisions interpreting that Act,
and would it not be wiser under the circumstances to defer consideration of negotia-
tions until such time as it appears that our employees desire to have your union
represent them?"
The language of this letter is virtually identical with the language of the letter
written under similar circumstances in the case of N. L. R. B. v. Ray Brooks, 348
U. S. 96, affg. 204 F. 2d 899 (C. A. 9).
In the Brooks case Judge Bone speaking for the court stated:
While clothed in polite and conciliatory language, the purport of the letter
was that, unless and until the Union could prove its majority , the employer was
under no legal obligation to bargain and was not inclined to do so. We can-
not say that the Board was unjustified in construing this letter as a refusal to
bargain. .
The Board saw fit to adopt a rule that when a bargaining representative had
been elected by a majority of the employees in an appropriate unit and certified
by the Board, its representative status could not be disturbed for a reasonable
period , normally about a year. Whittier Mills Company, 15 NLRB 457, en-
forced 5 Cir., 111 F. 2d 474; Century Oxford Mfg. Corp., 47 NLRB 835,
enforced 2 Cir., 140 F. 2d 541; Lift Trucks, Inc., 75 NLRB 998; Mature Trans-
port Company, 95 NLRB 311, enforced 5 Cir., 198 F . 2d 735; see Celanese
Corp. of America, 95 NLRB 664, 672, and the extended discussions of the
Board 's rule in N. L. R. B. v. Globe Automatic Sprinkler Co., 3 Cir., 199 F.
2d 64, 68, 69 , and General Box Company, 82 NLRB 678. However , the rule
was qualified by the proviso that the union 's majority could be challenged within
the certification year where "unusual circumstances " were present.
Under the facts of this case and in accord with the above -quoted holding, I find
that Respondent refused to bargain on April 2, 1952. Even if this were not so con-
strued , there can be no question that there was a refusal to bargain on April 15,
1954, when the Company took the position that it was unwilling to recognize the
Union as its employees bargaining representative in face of the Board 's decision of
November 25, 1953, certifying this fact to Respondent . At that time the Respondent
unequivocally refused , stating that "under the circumstances we do not feel justified
in meeting with you for the purpose of negotiating a contract covering our em-
ployees, a majority of whom you obviously do not represent."
In the case of The Baker and Taylor Co., 109 NLRB 245, the Board held:
It is a well-established Board rule that, in absence of unusual or special cir-
cumstances , a Board certification of a bargaining representative must be honored
for a reasonable period , usually at least a year following the certification , despite
evidence of repudiation or loss of majority by such bargaining representative.?
7 Henry Heide , Inc., 107 NLRB 1160. N. L. R. B. v. Ray Brooks, 348 U. S. 96, affg.
204 F 2d 899 (C. A. 9).
To the extent that this statement of the Board 's so-called "one-year rule" is in-
tended to hold that despite a clear and uncoerced loss of majority a union continues
throughout the certification year to be the statutory bargaining representative of the
employees , Member Rodgers does not agree . He is of the opinion that once a reason-
able period of time , as measured by the circumstances of the individual case, has
elapsed since the election and certification , it is "violative of the spirit and the very
letter" of the Act for the Board to require employees to continue to be represented
by an agent [ union] which they themselves for reasons of their own have repudiated.
N L R. B v G lobe Automiatio Sprinkler Co of Pennsylvania , 199 F. 2d 64, 70
(C. A. 3) Applying this rule to the instant case , Member Rodgers would find that
under the circumstance a lapse of 6 weeks between the Union 's certification and
repudiation did not constitute a reasonable period of time and that therefore the
Employer 's duty to bargain continued.
OAK FLOORING COMPANY, INC. 915
The rule is intended to give effect to the policy of the Act to stabilize industrial
relations and it is based on the Board's experience that a period of at least a year
is needed to assure employees, through their newly certified representative, an
opportunity to establish a functioning collective-bargaining relationship.8
8 18 Ann. Rep. 43.
In adopting the Board's certification-year rule the Court of Appeals for the Second
Circuit has said :
The purpose of the Act is to insure collective representation for employees,
and to that end § 9 gives power to the Board to supervise elections and certify
the winners as the authorized representatives. Inherent in any successful ad-
ministration of such a system is some measure of permanence in the results :
freedom to choose a representative does not imply freedom to turn him out of
office with the next breath. As in the case of choosing a political representative,
the justification for the franchise is some degree of sobriety and responsibility
in its exercise. Unless the Board has power to hold the employees to their
choice for a season, it must keep ordering new elections at the whim of any
volatile caprice; for an election, conducted under proper safeguards, provides
the most reliable means of ascertaining the deliberate will of the employees.
N. L. R. B. v. Century Oxford Manufacturing Corp., 140 F. 2d 541, 542-3 (C. A. 2),
cert. denied 323 U. S. 714. 3
In conclusion, as indicated above and on the evidence of record, I do not find
that the layoff on November 13 was a refusal to bargain. The Union had not been
certified, and the decision, based upon economic reasons, having been made before-
hand and carried out in good faith constituted no obligation upon the Company to
bargain with the Union about how many and who should be laid off.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices it
will be recommended that it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
It has been found that the Respondent in violation of the Act failed and refused
to bargain collectively with the Union as the duly designated collective-bargaining
representative of its employees in an appropriate unit. It will be recommended that
the Respondent cease and desist from such activity and on request bargain collec-
tively with the Union.
Upon the basis of the foregoing findings of fact and upon the entire record in the
case the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. The Respondent, Oak Flooring Company, Inc., is engaged in commerce within
the meaning of Section 2 (6) and (7) of the Act.
2. United Furniture Workers of America, CIO, is a labor organization within the
meaning of Section 2 (5) of the Act.
3 In another case involving the same issue the Board said : "The Respondent relies pri-
marily on Mid-Continent Petroleum Corp v. N. L. R. B., 204 F. 2d 613 (C. A 6), cert denied
346 U S. 856. With due respect to this opinion of the Court of Appeals for the Sixth
Circuit, we (the Board) are disposed to adhere to our customary certification-year rule,
particularly in view of contrary opinions voiced by other Courts of Appeals, until the
Supreme Court of the United States decides against the Board on this issue." See also
Shsrhngton Supermarket, Inc, et al, 108 NLRB 579; National Shirt Shops of Florida,
Inc., 105 NLRB 116 at pp. 126-127 of I'i oposed Findings ; Mid-Continent Petroleum Corp ,
99 NLRB 182, L. L Ma)ure Transport Co., 95 NLRB 311.
344056-55-vol. 111-59
916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. All production and maintenance employees at the Respondent's establishment
at Jefferson, North Carolina, including lumber graders, truckdrivers, and watchmen-
firemen, but excluding salesmen and all office and clerical employees, professional
employees, and supervisors as defined in the Act, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of Section 9 (b) of the Act.
4. The aforementioned Union was at all times material and now is the exclusive
representative of the employees in said unit for the purposes of collective bargaining
within the meaning of Section 9 (a) of the Act.
5. By refusing on April 2, 1954, and at all times thereafter to bargain collectively
with the Union 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.
6. By such activity the Respondent has also violated Section 8 (a) (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
Appendix B
STIPULATION
Without prejudice to the right of any party to object to the materiality of relevancy
of any of the facts or matters stipulated herein or to present at the hearing in this
matter any other or further evidence not inconsistent with this Stipulation:
It is hereby stipulated by and between Oak Flooring Company, Inc., herein called
Respondent, by Thornton Brooks, Esquire its attorney, and United Furniture Work-
ers of America, CIO, herein called the Union, by its representative, and by John M.
Dyer, Counsel for the General Counsel of the National Labor Relations Board, herein
called the Board, that:
Respondent admits that Paragraphs 1, 2, 3 and 4 of the Amended Complaint are
true.
2.
On or about September 2, 1953, the Union, by Representative E. A. Ferguson,
sent , and Respondent received, a letter requesting recognition of the Union and a
meeting for the purpose of negotiating a collective bargaining agreement, the letter
being General Counsel's Exhibit 2-B.
3.
Between the dates of July 28, 1953 and September 2, 1953, forty -nine of the em-
ployees in the unit described in Paragraph 4 of the Amended Complaint of a total
of seventy-seven employees who were eligible to vote in the election conducted by
the Board on November 13, 1953 signed union membership cards and would so
testify if they were called. The cards which the employees executed read as follows:
Date---------------------------
I, --------------------------------------------------now employed by
Oak Flooring Company
-------------------------------------------------------------------
have voluntarily accepted membership in the:
United Furniture Workers of America CIO
-------------------------------------------------------------------
and designate said union as my bargaining agency in all matters pertaining to
wages, hours and other conditions of employment.
--------------------------
Department Signature
--------------------------------- --------------------------
Shift Address
------- --------------------
S. S. No------------------
Witness
4.
On September 9, 1953 the Union filed with the Eleventh Regional Office of the
Board a Petition for Certification of Representatives, Petition being General Counsel's
Exhibit 2-C. The Board on September 10, 1953 issued a Notice of Representation
Hearing setting a Hearing for October 1, 1953 upon the question of representation
OAK FLOORING COMPANY, INC . 917
affecting commerce which had arisen, by virtue of the aforesaid Petition of the Union,
said Notice of Representation Hearing being General Counsel's Exhibit 2-D. A
Representation Hearing was held by the Board on October 1, 1953 in West Jefferson,
North Carolina.
5.
Respondent, on or about October 2, 1953 sent a letter to each of its employees,
said letter being General Counsel's Exhibit 2-E.
6.
The Board on October 16, 1953 issued a Decision and Direction of Election (Gen-
eral Counsel 's Exhibit 2-F), pursuant to which an election was held from 8:00 to
8:45 A. M. on November 13, 1953 in a unit of all production and maintenance em-
ployees at Respondent 's Plant at West Jefferson , North Carolina including lumber
graders, truck drivers, watchmen and firemen , but excluding salesmen, office clerical
employees, professional employees and supervisors as defined in the Act, the results
of said election being that of approximately 77 eligible voters, 69 ballots were cast,
of which 42 were cast for and 27 were cast against the Union . Six of the eligible
voters were in the Armed Services and did not appear at the poles to vote. ( Corrected
tally of ballots, G. C. Exhibit 2-G).
7.
Respondent, on the afternoon of November 13, 1953, laid off thirteen of its em-
ployees in the said unit, without prior notice to the employees and without notifying
or consulting the Union regarding the need or the pendency of such layoff. If officers
of the Respondent, in particular Todd Gentry, Secretary-Treasurer of Respondent,
were called to testify, they would testify that the decision to lay off these employees
was reached by the Respondent many days prior to the election, at least by November
6, 1953, and was necessitated by unfavorable business conditions which existed at the
time, particularly because Respondent's inventory of finished products was far in
excess of the orders on hand and this condition was continuing to grow worse; that
in selecting the thirteen employees who were to be laid off Respondent chose the
thirteen with the lowest seniority plant-wise; that the lay-off was placed into effect
at the close of business on Friday, November 13, 1953; that on other occasions in the
past employees have been laid off because of slack business or other unfavorable
business conditions, some having been laid off during the year 1953.
8.
No objections were filed to the result of the election nor to the conduct thereof
(Certification on conduct of election, General Counsel Exhibit 2-H) and, on No-
vember 25, 1953, the Board, by Reed Johnston, Regional Director for the Eleventh
Region, issued a Certification of Representatives (General Counsel Exhibit 2-I)
certifying that the Union had been designated and selected by a majority of the
employees as the exclusive representative of the employees for collective bargaining.
9.
Wade E. Vannoy, Jr., Esquire of West Jefferson, North Carolina, was retained by
employee Joe Lawrence to represent himself and other employees of Respondent. If
Mr. Vannoy were called to testify he woud testify that he does not represent the
Respondent in legal matters and his employment in this matter was solely on behalf
of Mr. Lawrence and his fellow employees. As to the particular circumstances under
which an RD petition was prepared and submitted, Mr. Vannoy would testify as per
his letter to Brooks, McLendon, Brim and Holderness, attorneys for Respondent,
which is as follows:
Law Offices
WADE E. VANNOY, JR.
West Jefferson, N. C.
29 March 1954
Brooks, McLendon, Brim & Holderness
Attorneys at Law
Greensboro , North Carolina
Attention Mr. Kenneth M. Brim
In Re: Employees of Oak Flooring
Company, Inc.
DEAR MR. BRIM: In response to your inquiry, please be advised that on Mon-
day, 16 November, 1953, Mr. Joe Lawrence, an employee at the Oak Flooring
918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company, Incorporated, came to my office and said that he and a large majority
of his fellow employees were dissatisfied with the results of an election held
the preceding Friday at his employer's firm for the purpose of determining
whether the employees desired to be represented by the United Furniture Work-
ers of America, CIO for collective bargaining purposes.
I was informed that in that election 27 employees voted in the negative and
42 in the affirmative, but since the time of the election there had been a marked
change in the desires of the employees with respect to the matter. I advised
him that it was highly doubtful in view of the accomplished fact of the election
and its result, that a petition for decertification, or any other legal step, would
be availing. However, Mr. Lawrence said he and the large number of em-
ployees whom he represented wanted, nevertheless, to file such a petition.
I, therefore, prepared a petition for decertification using the approved forms
of the NLRB, and in view of the unusual circumstances of the case, I prepared
and submitted in addition thereto a petition for decertification, a copy of which
I enclose. This Petition was circulated among the employees and returned to
me by one of the employees, signed by some 62 of the 69 employees who were
eligible to vote and who had voted in the above mentioned election. I trans-
mitted this petition to the Regional Office of the National Labor Relations Board
at Winston-Salem, North Carolina by a letter posted 19 November, 1953. I
was subsequently advised by Mr. William R. Magruder, Field Examiner, in
that office that the submitted petition would not be considered by reason of the
provisions of Section 9 (c) (3) of the National Labor Relations Act.
Enclosed please find a copy of the petition for decertification together with
the signatures which were affixed thereto.
With Highest regards, I am
Sincerely,
WEVjr;sl
Enclosures 2
( Signed ) Wade E. Vannoy, Jr.
WADE E. VANNOY, Jr.
Mr. Vannoy would further testify that on or about November 17, 1953, he advised
an officer of the Respondent that he had been engaged by Mr. Lawrence in regard
to the petitions; that on or about November 20, 1953, Mr. Vannoy communicated with
E. F. Upchurch, Jr., Esquire who was then attorney for Respondent and advised Mr.
Upchurch of his employment and told that a Petition for Decertification had been
prepared and signed by 62 employees of the Respondent.
10.
On November 19, 1953 Mr. Vannoy sent and the Eleventh Regional Office of
the Board received on November 20, 1953, an RD Petition signed by Joe Lawrence
seeking to decertify the Union for the unit at Respondent's Plant together with a
Petition for Decertification signed by 62 of the 77 employees who were eligible to vote
in the election conducted by the Board on November 13, 1953 and the employees
would so testify if they were called. (General Counsel's Exhibits 2-J through 2-0).
11.
Mr. Vannoy was notified by Mr. Magruder of the Eleventh Regional Office of the
Board that the petition was untimely under the provisions of Section 9 (c) (3) of
the Act and would not be processed. (General Counsel's Exhibit 2-P.) On De-
cember 1, 1953, Mr. Magruder talked by telephone to Mr. Vannoy and advised him
that the petition had not been docketed in accordance with General Counsel's Exhibit
2-P. Mr. Magruder discussed with Mr. Vannoy the rights of appeal in the event
the petition was docketed and dismissed. Mr. Vannoy stated that he did not wish to
carry the matter further. The documents submitted by Mr. Vannoy were retained
by the Regional Office.
12.
On December 12, 1953, Union Representative Floyd Buckner contacted Attorney
E. F. Upchurch, Jr., requesting a meeting for the purposes of negotiating a collective
bargaining agreement. Attorney Upchurch, at that time, represented Respondent.
On December 12, Attorney Upchurch confirmed the conversation by letter as follows:
OAK FLOORING COMPANY, INC . 919
MR. FLOYD BUCKNER
UFWOA
509 S . Main Street
High Point, N. C.
December 12, 1953.
Re: Oak Flooring Co.
DEAR MR . BUCKNER : This confirms our telephone conversation today in which
we agreed to meet at the Hotel Colvard on Thursday, December 17, at 2:00 p. in.
I have not seen my clients since the election and, in accordance with my state-
ment to you over the telephone , it is understood that this agreement to meet is
without prejudice to any position that we may take at such meeting upon any
issue.
Very truly yours,
E. F. UPCHURCH, JR.
cc: Mr. Todd Gentry
Oak Flooring
On December 17 a meeting was held, attended by Union representative, Floyd
Buckner and E. A. Ferguson and an employee, Wayne Carpenter, and for Respond-
ent, Attorney Upchurch and Todd Gentry, Secretary-Treasurer of Respondent. At
this meeting, Respondent stated its position that it had heard that an RD Petition
had been filed and wished to talk to the attorney representing the RD petitioners
before beginning collective bargaining conferences . That was the extent of the
meeting.
13.
Thereafter, due to the illness of Attorney Upchurch, attempts to meet for the pur-
poses of bargaining were unsuccessful until March 10, 1954. At that meeting Todd
Gentry represented Respondent and stated that Attorney Upchurch was ill and
that they would agree to another meeting when Attorney Upchurch recovered or,
if that did not happen in the near future, Respondent would hire another attorney.
Attorney Upchurch did not recover from his illness and thereupon Respondent re-
tained the services of Brooks, McLendon, Brim and Holderness of Greensboro, North
Carolina, and they have advised it since that time. ,
14.
On March 29, 1954, Union Representative Smith wrote to Mr . Gentry. (General
Counsel 's Exhibit 2-Q.) Thereafter, Mr. Gentry replied to Mr. Smith on April 2,
1954. ( General Counsel 's Exhibit 2-R.) On April 12, 1954, Mr. Floyd Buckner
wrote to Mr. Gentry. ( General Counsel's Exhibit 2-S.) On April 15, 1954, Mr.
Gentry wrote to Mr. Buckner. (General Counsel 's Exhibit 2-T.) General Counsel's
Exhibits 2-Q through 2-T were received by the addressees.
15.
Respondent adheres to the position it stated in General Counsel's Exhibit 2-T and
still continues to refuse to bargain with the Union on that same basis.
16.
No claim had been made for recognition by any union at the Respondent 's plant
prior to September 1953 and there has been no other Board election and no prior
history of an attempt to unionize the employees of Respondent and no unfair labor
practice charges have been filed with the Board by this or any other union against
the Respondent except for the Charge upon which the instant Amended Complaint
is based.
OAK FLOORING COMPANY, INC.
by (s) Thornton H. Brooks Date 17 Aug. 1954
UNITED FURNITURE WORKERS OF AMERICA, C.I.O.
by (s) Ewell A. Ferguson Date 8-17-54
COUNSEL FOR THE GENERAL COUNSEL, NATIONAL LABOR RELATIONS BOARD
by (s) John M. Dyer Date August 17, 1954