Pepperell Manufacturing Co.

National Labor Relations Board - Board Decisions

Jun 28, 1967

166 N.L.R.B. 207 (N.L.R.B. 1967)

PEPPERELL MFG. CO. 207
Pepperell Manufacturing Company and Textile
Workers Union of America AFL-CIO, CLC. Case
10-CA-6819
June 28, 1967
DECISION AND ORDER
By MEMBERS FANNING, BROWN, AND ZAGORIA
On May 9, 1967, Trial Examiner Charles W.
Schneider issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged
in and was engaging in certain unfair labor practices
and recommending that it cease and desist
therefrom and take certain affirmative action. as set
forth in the attached Trial Examiner's Decision.
Thereafter, Respondent filed exceptions to the
Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
power in connection with this case to a
three-member panel.
The Board has considered the entire record in
this case, including the record and decisions in Case
10-RC-6214, The Trial Examiner's Decision, and
Respondent's exceptions, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby or-
ders that Pepperell Manufacturing Company, Lin-
dale, Georgia, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner's Recommended Order. I
I The address and telephone number for Region 10 , appearing at the
bottom of the notice attached to the Trial Examiner's Decision, is
amended to read: 730 Peachtree Street , N.E., Room 701 , Atlanta, Geor-
gia 30308 , Telephone 526-5741 -
TRIAL EXAMINER' S DECISION
STATEMENT OF THE CASE
The Representation Proceeding'
CHARLES W. SCHNEIDER , Trial Examiner : Upon peti-
tion for certification as collective-bargaining representa-
tive filed by Textile Workers Union of America,
AFL-CIO, CLC, herein called the Union, the Regional
Director for Region 10 of the Board on February 16,
1965, approved a Stipulation for Certification Upon Con-
sent Election executed by Pepperell Manufacturing Com-
pany, Lindale , Georgia, herein called the Respondent,
and by the Union. The appropriate bargaining unit was
stipulated to be the unit set out hereinafter.
An election pursuant to the stipulation was held on
March 5, 1965, which the Union lost. Upon objections to
the conduct of the election filed by the Union, and after
hearing thereon, and over the opposition of the Respond-
ent, the election was set aside by the Board on June 13,
1966, and a second election directed.2 Pursuant thereto,
a second election by secret ballot was conducted on Au-
gust 4, 1966, under the direction and supervision of said
Regional Director, in which election the Union received
a majority of the valid votes cast. The Respondent filed
timely objections to the election, in which it requested
that the March 5, 1965, election be certified as ex-
pressing the true wishes of the employees, or in the alter-
native that the August 1966 election be set aside and a
new election directed, and that in the event of dispute a
hearing be held to resolve any substantial issues raised.
On September 16, 1966, the Regional Director, after in-
vestigation, issued a report on objections in which he
found the Respondent's objections without merit, and
recommended that they be overruled and that the Union
be certified as bargaining representative of the employees
involved. Thereafter the Respondent filed timely excep-
tions to the Regional Director's report on objections. On
January 4, 1967, the Board issued its Decision and Cer-
tification of Representative in which it found no "suffi-
cient warrant for setting aside the election." Accordingly,
the Board adopted the Regional Director's report and
certified the Union as the bargaining representative under
the Act.
The Complaint Case
On January 13, 1967, the Union filed the unfair labor
practice charge involved in the instant case, in which it al-
leged that since on or about January 10, 1967, the
Respondent had refused to bargain with the Union.
On February 23, 1967, the General Counsel, by the
Regional Director for Region 10, issued a complaint al-
leging that the Respondent had committed unfair labor
practices in violation of Section 8(a)(5) and (1) and Sec-
tion 2(6) and (7) of the Act by refusing to bargain with the
Union upon request. In due course the Respondent filed
its answer to the complaint in which certain allegations of
the complaint were admitted and others denied.
In its answer, the Respondent admits the following al-
legations of the complaint: (1) jurisdictional, (2) the
Union is a labor organization, and (3) the unit is ap-
propriate. Respondent denies the allegations contained in
paragraphs 7, 8, 9, 10, and 11 of the complaint wherein it
is alleged that (1) the employees designated and selected
the Union in the August 4, 1966, election as their bar-
gaining representative, (2) the Board certified the Union,
(3) the Union has been and is the representative of a
majority of the employees in the appropriate unit, (4) the
Union requested Respondent on or about January 10,
1967, to bargain collectively, and (5) the Respondent on
or about that date and thereafter refused and continues to
refuse to bargain collectively. Respondent further denied
each and every allegation contained in paragraph 12 of
the complaint, wherein it is alleged that Respondent com-
mitted unfair labor practices.
I Official notice is taken of the representation proceeding, Case
10-RC-6214 See Section 9(d) of the National Labor Relations Act
2 Pepperell Manufacturing Company, 159 NLRB 291.
166 NLRB No. 24
208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In its answer , Respondent further alleges that the
Board improperly and unlawfully set aside the election of
March 5, 1965, in which a majority of the employees
voted against the Union, that it improperly conducted a
second election, and that it failed to provide Respondent
with a hearing based on its filing of timely objections to
the second election.
On March 21, 1967, counsel for the General Counsel
filed a motion for summary judgment wherein he con-
tends that the facts of the official record and other facts
submitted with the motion establish the allegations of the
complaint as a matter of law, and that therefore there is
no necessity for a hearing.
On March 24 , 1967, I issued an Order to Show Cause
on the motion for summary judgment , in which the parties
were directed to show cause on or before April 10, 1967,
subsequently extended to April 24, as to whether or not
the motion for summary judgment should be granted. The
Respondent has filed a response to the motion.
Ruling on Motion for Summary Judgment
The Respondent opposes the General Counsel's mo-
tion for summary judgment . The Respondent contends
that the March 1965 election , which the Union lost, was
erroneously set aside , and that the August 1966 election
should have been nullified on the 'basis of the Respond-
ent's objections , and that the certification is con-
sequently invalid . Additionally the Respondent contends
that it was improperly deprived of a hearing on its objec-
tions to the August 1966 election, and urges that its
answer to the complaint raises substantial and material is-
sues of fact which cannot be resolved without a hearing.
It has been seen that the questions as to the validity of
the two elections , the merit of the Respondent 's conten-
tions with respect to each, and whether the Union should
be certified , were raised before and decided by the Board
in the representation proceeding . It is thus clear that the
Respondent seeks to relitigate those issues here.
This the Respondent may not do before the Trial Ex-
aminer. It is established Board policy, in the absence of
newly discovered or previously unavailable evidence, not
to permit litigation before a Trial Examiner in a complaint
case of issues which were or could have been litigated in
a prior related representation proceeding .3 This policy is
applicable even though no formal hearing on objections
has been provided by the Board . Such a hearing is not a
matter of right unless substantial and material issues are
raised.4 And that there are no such issues has been effec-
tively decided by the Board.
The Trial Examiner has no authority to review the
Board's final dispositions of the representation issues or
to question its conclusions made on the existing record.
The Respondent is free, in exceptions to this Decision, to
request the Board to reconsider the determinations in the
representation case, and , in the event of an unfavorable
final order by the Board the Respondent may request
review of the determinations in an appropriate court of
appeals. At this stage of the proceedings , however, absent
newly discovered evidence , the Board 's disposition of the
,3 Collins & Aikman Corporation , 160 NLRB 1750 , E-Z Davies
Chevrolet, 161 N LRB 1380 ; Metropolitan Life Insurance Company, 163
NLRB 579. See Pittsburgh Plate Glass Company v . N L R B , 313 U.S.
146, 162.
4 0 K. Van and Storage, Inc., 127 NLRB 1537, enfd . 297 F 2d 74
(C A. 5) And see N.L.R.B . v. Air Control Products of St Petersburg,
representation matters is the law of the case and binding
on the Trial Examiner. No newly discovered or previ-
ously unavailable evidence is offered by the Respondent.
The refusal to bargain being established, as is
hereinafter found , there are no issues litigable before a
Trial Examiner , and therefore no matter requiring hear-
ing. Accordingly , the General Counsel ' s motion for sum-
mary judgment is granted , and I hereby make the follow-
ing further:
FINDINGS
I. THE BUSINESS OF THE RESPONDENT
Respondent is a Massachusetts corporation with an of-
fice and place of business in Lindale , Georgia, where it is
engaged in the manufacture and sale of textile products.
During the year ending February 23, 1967, a representa-
tive period , Respondent sold and shipped products
valued in excess of $50,000 from its plant at Lindale,
Georgia, directly to customers located outside the State
of Georgia . The Respondent is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
It. THE LABOR ORGANIZATION INVOLVED
The Union is now, and has been at all times material
herein , a labor organization within the meaning of Section
2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The following employees of Respondent constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
All production and maintenance employees of the
Respondent at its Lindale , Georgia, plant , including
all plant clerical employees, but excluding all office
clerical employees, professional employees, techni-
cal employees , guards and supervisors as defined in
the Act.
On August 4, 1966, a majority of Respondent's em-
ployees in the said unit selected the Union as their collec-
tive-bargaining representative in a secret-ballot election
conducted under the supervision of the Regional Director
for Region 10 of the National Labor Relations Board in
Case l0-RC-6214.
On January 4, 1967, the National Labor Relations
Board, after consideration of Respondent's objections to
the above-described election, certified the Union as the
exclusive collective-bargaining agent of the employees in
the said unit.
At all times since on or about January 4, 1967, and
continuously to the present, the Union has been the
representative for the purpose of collective bargaining of
the employees in the said unit, and, by virtue of Section
9(a) of the Act, has been and is now the exclusive
representative of all the employees in said unit for the
purpose of collective bargaining with respect to rates of
Inc, 335 F.2d 245, 249 (C A 5 )• "If there is nothing to hear, then a
hearing is a senseless and useless formality " Cf U S. Rubber Co. v.
N.L R.B, 373 F 2d 602 (C.A. 5), where the court disagreed with the
Board's conclusion that the objections raised no issues requiring hearing
The court is authorized to reverse the Board's conclusions if it deems
them incorrect . The Trial Examiner is not
PEPPERELL MFG. CO. 209
pay, wages, hours of employment, and other terms and
conditions of employment.
Under date of January 10, 1967, James Shea, interna-
tional representative of the Union, wrote to G. Howard
Smith, general manager of the Respondent, requesting a
meeting for the purpose of negotiations concerning the
certified unit. There is no indication of any direct reply by
the Respondent. However, on January 17, 1967, the
Respondent posted a notice to employees on its bulletin
board, in which it acknowledged receipt of the Union's
letter but stated its intention to seek court review of the
validity of the certification.
By this action the Respondent failed and refused to bar-
gain collectively with the Union in violation of Section
8(a)(5) of the Act and interfered with, restrained, and
coerced its employees in violation of Section 8(a)(1) of
the Act.
The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
In order to insure that the employees will be accorded
the statutorily prescribed services of their selected bar-
gaining agent for the period provided by law, it will be
recommended that the effective period of the certification
shall begin on the date the Respondent commences to
bargain in good faith with the Union as the recognized
bargaining representative in the appropriate unit.5
Upon the foregoing findings and conclusions and the
entire record in the case, I recommend the following:
maintained by it for 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 Region 10, in
writing, within 20 days from receipt of this Decision,
what steps it has taken to comply herewith.7
5 Mar-Jac Poultry Company, Inc, 136 NLRB 785, Commerce Com-
pany dibla Lamar Hotel, 140 NLRB 226, 229, enfd. 328 F.2d 600
(C.A 5); Burnett Construction Co., 149 NLRB 1419, 1421, enfd.
350 F 2d 57 (C A. 10).
6 In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order."
' In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read: "Notify said Regional Director,
in writing, within 10 days from the date of this Order, what steps Respon-
dent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
ORDER
A. The effective period of the certification shall be
deemed to begin on the date the Respondent commences
to bargain in good faith with the Union as the recognized
bargaining representative in the appropriate unit.
B. Pepperell Manufacturing Company, Lindale, Geor-
gia, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Textile Work-
ers Union of America, AFL-CIO, CLC, as the exclu-
sive collective-bargaining representative of the em-
ployees in the following appropriate bargaining unit:
All production and maintenance employees of the
Respondent at its Lindale, Georgia, plant, including
all plant clerical employees, but excluding all office
clerical employees, professional employees, techni-
cal employees, guards and supervisors as defined in
the Act.
(b) Interfering with the efforts of said Union to
negotiate for or represent the employees in said ap-
propriate unit as the exclusive collective-bargaining
representative.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Upon request, bargain collectively with Textile
Workers Union of America, AFL-CIO, CLC, as the ex-
clusive representative of the employees in the appropriate
unit described above, with respect to rates of pay, wages,
hours of work, and other terms and conditions of employ-
ment, and embody in a signed agreement any understand-
ing reached.
(b) Post at its Lindale, Georgia, plant, copies of the at-
tached notice marked "Appendix."6 Copies of said
notice, on forms to be furnished by the Regional Director
for Region 10, after being duly signed by an authorized
representative of the Respondent, shall be posted by the
Respondent immediately upon receipt thereof, and be
Pursuant to the Recommended Order of a Trial Ex-
aminer 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 em-
ployees that:
WE WILL NOT refuse to bargain collectively with
Textile Workers Union of America, AFL-CIO,
CLC, as the exclusive bargaining representative of
the following employees:
All production and maintenance employees at
our Lindale, Georgia, plant, including all plant
clerical employees, but excluding all office cleri-
cal employees, professional employees, techni-
cal employees, guards and supervisors as
defined in the Act.
WE WILL NOT interfere with the efforts of said
Union to negotiate for or represent the employees in
said appropriate unit as the exclusive collective-bar-
gaining representative.
WE WILL bargain collectively with the Union as
the exclusive representative of the employees, and
if an understanding is reached we will sign a contract
with the Union.
PEPPERELL MANUFACTURING
COMPANY
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive
days from the date of posting, and must not be altered,
defaced, or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 528 Peachtree
Seventh Building, 50 Seventh Street, N.E., Atlanta,
Georgia 30323, Telephone 526-5741.