Schneider Mills, Inc.

National Labor Relations Board - Board Decisions

Jun 23, 1966

159 N.L.R.B. 982 (N.L.R.B. 1966)

982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Notify the Regional Director for Region 26, in writing, within 20 days from
the receipt of this Decision , what steps it has taken to comply therewith.a
3In the event that this Recommended Order is adopted by the Board , this provision
shall be modified to read : "Notify the Regional Director for Region 26, In writing , within
10 days from the date of this Order, what steps the Respondent has taken to comply
herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order 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 upon request bargain with Machine Printers and Engravers Asso-
ciation of the United States as the exclusive collective -bargaining representative
of the employees in the appropriate unit described below with respect to rates
of pay, wages, hours of employment , and other conditions of employment, and,
if an understanding is reached , embody such understanding in a signed
agreement.
The appropriate unit is:
All machine printers designated by us as assistant foremen and their
apprentices at our Memphis , Tennessee , plant, excluding all other employ-
ees, office clerical employees , guards, and supervisors as defined in the
Act.
AMERICAN FINISHING 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, 746
Federal Office Building, 167 North Main Street , Memphis , Tennessee 38103, Tele-
phone 534-3161.
Schneider Mills, Inc. and Jimmy and Josh , Inc. and Textile Work-
ers Union of America , AFL-CIO. Case 11-CA-2985. June 23,
1966
DECISION AND ORDER
On May 10, 1966, Trial Examiner George J. Bott issued his Deci-
sion in the above-entitled proceeding, granting the General Counsel's
Motion for "Judgment on the Pleadings," and finding that the
Respondent had engaged in and was engaging in certain unfair
labor practices within the meaning of the National Labor Relations
Act, as amended. The Trial Examiner recommended that the
Respondent cease and desist from such unfair labor practices and
take certain affirmative action, as set forth in the attached--Trial
Examiner's Decision. Thereafter, the Respondent filed exceptions to
the Trial Examiner's Decision and a supporting brief.
Pursuant to the provisions of, Section 3'(b) , of the Act, the National
Labor Relations Board has delegated its powers in connection- with
159 NLRB No. 87.
SCHNEIDER MILLS, INC. 983
this case to a three-member panel [Chairman McCulloch and Mem-
bers Brown and Zagoria].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and brief, and the entire
record in this case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.
[The Board, adopted the Trial Examiner's Recommended Order.]'
1 The address for Region 11, appearing at the bottom of the notice attached to the
Trial Examiner 's Decision , is amended to read : 1624 Wachovia Building, 301 North Main
Street, Winston-Salem , North Carolina 27101.
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
The Representation Proceeding
Pursuant- to a Decision and Direction of Election issued by the Regional Direc-
tor of Region 11 on October 13, 1965, a secret -ballot election in the unit found
appropriate was held under the supervision of the Regional Director on Novem-
ber 5 , 1965 . In the election the Charging Party, Textile Workers Union of Amer-
ica, AFL-CIO, herein called the Union, received a majority of the valid votes
cast by employees of Schneider Mills, Inc . and Jimmy and Josh, Inc., herein called
Respondent.
On November 12, 1965 , Respondent filed timely objections to the conduct of
the election and to conduct affecting its results which it supplemented by an addi-
tional objection , timely filed, on November 15. Very briefly stated, the objections
were that:
(1) The Union directed certain persons who were clearly ineligible to present
themselves at the polls and cast ballots.
(2) The Board allowed persons who were clearly ineligible to cast ballots, and
this action , viewed in the light of the Union 's conduct , created an atmosphere of
confusion in the minds of the voters that it was the Union and not the Board
which was making important decisions with respect to the proceeding.
(3) The Union made misrepresentations about rates and conditions of employ-
ment in organized mills and in respect to a recent strike settlement and other-
wise engaged in "campaign trickery which involved a substantial departure from
the truth at a time when the Employer was unable to make an effective reply.
Pursuant to Section 102.69 of the Board 's Rules and Regulations , Series 8, as
amended, the Regional Director conducted an investigation of the issues raised by
the objections and offered the parties full opportunity to submit and present evi-
dence bearing on the issues . No formal hearing was requested at that time and
none was held.
On December 30, 1965 , the Regional Director issued his Supplemental Decision
and Certification of Representatives , in which he found that the objections were
without merit and overruled them . Accordingly, the Regional Director certified the
Union as the bargaining representative of the employees in the appropriate unit,
pursuant to Section 9(a) of the Act.
On January 22, 1966 , Respondent filed with the Board its request for review
and motion for stay of Regional, Director 's Decision in the representation. case as
permitted by the provisions of Section 102.67 of the Board 's Rules and Regulations.
In'its' motion , -the Respondent attached a written statement of position which it
had submitted to the Regional Director in support of its objections and it reiterated
and developed its arguments and contentions, in its motion ., It concluded by
requesting the Board to reverse the Regional Director's Supplemental Decision. and
Certification of Representatives , set aside the election, and issue, an order direct-
ing that a new election be held. i r
984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
-On February 10, 1966, the Board issued an order denying Respondent's request
for review on the ground that it raised ". . . no substantial issues warranting
review."
The Complaint Case
Upon a charge of unfair labor practices filed by the Union on March 8, 1966,
• the General Counsel for the National Labor Relations Board issued a complaint
and notice of hearing dated March 11, 1966, alleging that Respondent had refused
to bargain with the Union beginning on or about March 4, 1966, and continuing
thereafter, although requested to do so by the Union.
Respondent filed an answer to the complaint- on March 18, and amended it on
March 31, 1966. In its answer,'as amended, Respondent denied the commission of
any unfair labor practices, but it admitted many allegations of the complaint.
Respondent, admitted. the jurisdictional allegations, the status of the Union as a
labor organization, the appropriate unit for bargaining, the results of the election,
,the filing of objections, the Regional Director's Supplemental Decision and.Certifi-
rcation of Representatives- in Case 11-RC-2264 certifying the Union, Respondent's
filing of a Request for Review and Motion for., Stay with the Board and its denial
by the Board on February 10, 1966. Respondent also admitted that the Union
had on various dates requested it-to bargain and that Respondent had refused to
bargain collectively with the Union as the statutory representative of its employees.
Although Respondent admitted most of the allegations of the complaint, includ-
ing the results of the election, it asserted that the apparent majority of the Union
was the result of coercion and other unlawful conduct by the Union prior to the
election, and it denied that the Union was the validly chosen and lawful representa-
tive of the employees' because "of the coercive and other unlawful conduct engaged
in by the Union prior to the election admittedly held as alleged in paragraph 8 of
'the Complaint,- and, further, by reason of the error of the Regional Director of the
Eleventh Regional Office of the National Labor Relations Board in failing to con-
'duct a' hearing upon Respondent's -objections to said Union's conduct, a hearing
being the-only proper means of determining the facts and resolving issues of
credibility, and further error in failing to find the Union's conduct and mis-
representation' of facts improperly coerced and interfered with a free choice by
-Respondent's employees in said, election, the Regional Director having found such
misrepresentations did, in fact, occui, and further,-by reason of error by the Board
in denying Respondent's Request for Review of the Regional Director's Supple-
mental 'Decision and Certification' of Representative."
The hearing in this matter opened in Statesville, North Carolina, before Trial
_Examiner George' J.' Bott and all parties were represented. After the introduction
of the pleadings, General Counsel made a motion for judgment on the pleadings on
`the ground. that 'it appeared from the pleadings that'there were no issues of fact
requiring a-hearin- g: Respondent opposed the motion basically on the ground that
it had.not been given a hearing on its objections to 'the election during which it
would have an opportunity to cross-examine witnesses and be afforded other rights
,which a formal' hearing normally- entails. Respondent asserted that a denial of a
hearing 'was' a denial of due process. I indicated that I was prepared to grant
'General Counsel's motion but would give the parties time to file additional argu-
ments 'or' material with me before a written Decision would issue. Respondent
'then'proceeded to make'an offer of proof incorporating in it, with my permission,
'its request for 'review and motion for stay, of Regional Director's Decision, to
which was attached the Regional Director's Supplemental Decision and Certifica-
tion: ' •I rejected Respondent's offer of proof, accepted Respondent's Request for
Review- as -an' exhibit, • and' closed' the hearing.' -
Ruling bn the 'Motion for Judgment on the Pleadings
- No additional 'written arguments or materials have been submitted ' to me during
• the time allowed., - L have carefully considered the record in this proceeding, includ-
. ing-'the pleadings, Respondent's argument on the record, its offer of proof, its
request for review and motion for stay of Regional Director's Supplemental Deci-
sion -and Certification of Representatives, and it is my opinion that Respondent
'seeks to :relitigate. in this 'unfair labor practice proceeding matters which the
' The remarks oh''page 13, lines 8-12 of the transcript are those of the General Counsel,
and not mine. -
' SCHNEIDER MILLS, INC. ' 985
Regional' Director and the Board; have decided in the'representation case . This' it
may not do. The gist of Respondent's opposition to General Counsel's' motion- for•
judgment of the pleadings is that the Regional Director was in error in dismissing
its objections and that it was and is' entitled 'to"a hearing in order to insure full
litigation of the facts and accurate determinations of credibility.. But in the
absence of newly discovered or previously unavailable evidence, issues which•were
or could have been raised in a related representation case may not be relitigatea'
in a subsequent unfair labor practice proceeding,2 and this policy holds even
though a formal hearing on objections to an election' has not been provided,
because one is only entitled to a hearing if the objections raise material and sub-
stantial issues of fact, a requirement which has been held proper to prevent dila-
tory tactics by employers or unions disappointed in the election returns .3
A review of the representation case proceedings reveals that the Regional Direc-,
for considered and ruled upon all of Respondent's objections. As permitted by the,
Board's Rules and Regulations, he conducted an administrative investigation, and,
implicit in his Supplemental Decision and Certification of Representatives is -his,
determination that there were no substantial and material issues of fact, which
required a hearing.4 Respondent does not now contend that there is newly dis-
covered or previously unavailable evidence that has not been considered, and a
reading of the objections, the Regional Director's' Supplemental Decision and
Respondent's request for review does not, in my opinion, support the view that the,
case required a hearing, particularly in the light of the Regional Director's findings
and conclusions, in substance and in effect, that the actions objected to, even: if
found, did not, in the light of other admitted facts, warrant invalidating the -elec
tion. What is left then, it seems to me, is Respondent's disagreement with the
Regional Director's ultimate findings and conclusions on issues which have been
litigated.
In any event, whether or not the Regional Director was in error in not holding
a hearing and wrong in his findings and conclusions, all of these matters have
been decided by the Board and are not open for determination by me. Respondent
requested Board review of the Regional Director's Supplemental Decision under
Section 102.67 of the Board's Rules, and it explicitly or implicitly raised before the
Board every question it raised before the Regional Director and me. The Board,
denied Respondent's appeal, and Section 102.67(f) of the Rules provides, in part,
that "Denial of a request for-review shall constitute an affirmance of the regional
director's action which shall also preclude relitigating any such issues in any related
subsequent unfair labor practice proceeding." 5 The Board's disposition of the
matter constitutes, at this stage of the proceeding,, the law of, the case, and I am
foreclosed, in my opinion, by the previous action of, the Board from reviewing,
the Regional Director's determinations. -
It appears, therefore, that there are no factual issues litigable before, a Trial
Examiner. Accordingly the General Counsel's motion for judgment on the' plead-
ings is granted. On the basis of the record before me I make the following:
FINDINGS dF FACT
1. JURISDICTION -
Schneider Mills, Inc. and Jimmy and Josh, Inc., are a single integrated enter-
prise engaged in the business of -manufacturing textiles and textile products with
principal offices and place of business at Taylorsville, North Carolina. During the
period immediately prior to the issuance of the complaint, Respondent manufac-
tured, sold, -and shipped finished products valued in excess'of $50,000-to points and,
places outside the State of North Carolina, from its Taylorsville, North Carolina,
plant.
2 Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146; Producers, Inc., 133 NLRB
701, 704 ' -
3 N.L.R.B. v. Joclin Manufacturing Company, 321 F 2d .627, 630 (C.A. 2) ; N.L.R.B. V.,
O.S. Van and Storage, Inc ., 297 F.2d 74, 76 (CA. 5) ; NL.R.B. v. National Survey.Serv-
ices, Inc. (C.A. 7), decided April 12, 1966 (61 LRRM 2712) ; N.L.R.B. v. Sun Drug Co.,
Inc. (C.A. 3), decided April 19, 1966, Section 102.69 (c) of the Rules and Regulations of'
the Board , Series 8, as amended. _
'-'^' -^ {4 Section 102.69(c) of the Rules .
- 6 See Mountain States' Telephone and Telegraph - Company, 136 NLRB 1612 ; Carolina
Natural Gas Corporation , 157 NLRB 674 . - • - 1 1
1
-
986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
- Respondent is now, and has been at all times material herein, an employer
engaged in commerce within the meaning of Section 2(6) and (7) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
Textile Workers Union of America, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
M. THE UNFAIR LABOR PRACTICES
1. The unit
All production and maintenance employees, including truckdrivers, laboratory
employees, and instructor employed at Respondent's Taylorsville, North Carolina,
plant excluding office clerical employees, professional employees, watchmen, guards,
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 National Labor
Relations Act.
2. The certification of the Union
On.November 5, 1965, a majority of the employees in the appropriate unit, in
a secret-ballot election conducted by the Regional Director, designated the Union
as their representative for the purposes of collective bargaining with Respondent.
On December 30, 1965, the Regional Director certified the Union as such
representative.
3. The request to bargain and Respondent's refusal
On or about January 25, February 11, and March 2, 1966, the Union requested
Respondent to meet with,it for the purpose of collective bargaining. Commencing
on or about March 4, 1966, and continuing thereafter, Respondent refused and
continues to refuse to meet and bargain collectively with the Union as the exclu-
sive bargaining representative of all the employees in the appropriate unit.
The Respondent's refusal to meet and bargain with the Union constitutes an
unfair labor practice.
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 Respondent set forth 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 com-
merce and the free flow of commerce.
Upon the foregoing findings of fact and the record before me, I make the
following: -
CONCLUSIONS OF LAW
1. Schneider Mills, Inc. and Jimmy and Josh, Inc., is a single integrated, employer
within the meaning of Section 2(2) of the Act, and is 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 Section 2(5) of the
Act.
3. All production and maintenance employees, including truckdrivers, laboratory
employees, and instructor employed at the Respondent's Taylorsville, North
Carolina, plant, excluding office clerical employees, professional employees, watch-
men, guards , 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. At all times since November 5, 1965, the Union has been, and is now, the
representative for the purpose of collective bargaining of the majority of the employ-
ees in the appropriate unit, within the meaning of Section 9(b) of the Act.
5. By refusing to bargain collectively with the Union on or about March 4, 1966,
and thereafter, as the exclusive representative of the employees in the appropriate
unit, the Respondent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(5) and (1) of the Act.
6. The aforesaid- unfair labor practices affect commerce, within the meaning of
Section 2 (6) and (7) of the Act.
SCHNEIDER MILLS, INC. 987
Upon the basis of the foregoing findings and conclusions and the record before
me I recommend that the Board issue the following: ' '
ORDER
Schneider Mill, Inc. and Jimmy and Josh, Inc., their officers, agents, successors,
and assigns, shall;
1. Cease and desist, from refusing to bargain collectively with Textile Workers
Union of America, AFL-CIO, as the exclusive collective-bargaining representative
of employees in the appropriate unit` at the Respondent's Taylorsville, North Caro-
lina, plant.
2. Take the following affirmative action," which I find will effectuate the policies
of the Act:
(a) Upon request, bargain collectively with Textile Workers Union of America,
AFL-CIO as the exclusive representative of all the employees in the appropriate
unit described above, with respect to rates of pay, wages, hours of employment, and
other conditions of employment, and, if an understanding is reached, embody such
understanding in a signed agreement.
(b) Post at its Taylorsville, North Carolina, plant copies of the attached notice
marked "Appendix." 6 Copies of said notice, to be furnished by the Regional
Director for Region 11, shall, after being duly signed by Respondent's representa-
tive, be posted by it immediately upon receipt thereof, and be 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
Respondent to insure that notices are not altered, defaced, or covered by any other
material.
(c) Notify the Regional Director for Region 11, in writing, within 20 days from
the receipt of this Decision, what steps the Respondent has taken to comply here-
with?
O 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 Appeals , Enforcing an Order" shall be substituted for the words."a Decision
and Order."
7 In the event that this Recommended Order is adopted by the Board , this provision
shall be modified to read : "Notify said Regional Director , within 10 days from the date
of this Order , what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order 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 upon request bargain with Textile Workers Union of America,
AFL-CIO, as the exclusive collective-bargaining representative of the employ-
ees in the appropriate unit described below with respect to rates of pay,
wages, hours of employment, and other conditions of employment, and, if an
understanding is reached, embody such understanding in a signed agreement.
The appropriate unit is:
All production and maintenance employees,, including truckdrivers, lab-
oratory employees and instructor employed at our Taylorsville, North
Carolina, plant, excluding office clerical employees,' professional employ-
ees, watchmen, guards, and supervisors as defined in the Act.
SCHNEIDER MILLS, INC., AND JIMMY AND JOSH, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board' s Regional Office, 1831
Nissen Building , 310 West Fourth Street, Winston-Salem , North Carolina 27101,
Telephone 723-2911.