Town and Country Manufacturing Co. of Texas, Inc.

National Labor Relations Board - Board Decisions

Aug 18, 1970

184 N.L.R.B. 920 (N.L.R.B. 1970)

920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Town and Country Manufacturing Co. of Texas,
Inc. and United Furniture Workers of America,
AFL-CIO, Local 273. Case 1 1-CA-4126
August 18, 1970
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS MCCULLOCH
AND BROWN
On May 12, 1970, Trial Examiner Charles W.
Schneider issued his Decision in the above-entitled
proceeding, granting General Counsel's motion for
summary judgment on the ground that the
pleadings submitted by the Respondent presented
no issue of fact requiring a hearing 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 Respon-
dent cease and desist from such unfair labor prac-
tices 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 and a supporting brief.
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
powers in connection with this case to a three-
member panel.
The Board has considered the Trial Examiner's
Decision and the entire record in this case, includ-
ing the exceptions and brief, 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
orders that the Respondent, Town and Country
Manufacturing Co. of Texas, Inc., Sumter, South
Carolina, its officers, agents , successors, and as-
signs, shall take the action set forth in the Trial Ex-
aminer's Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
The Issue
CHARLES W. SCHNEIDER, Trial Examiner: The
case arises on a motion for summary judgment filed
by counsel for General Counsel upon an admitted
refusal by the Respondent to bargain with the cer-
tified Charging Union, the Respondent contending
that it was improperly denied a hearing on its ob-
jections to the election in the related representation
case, and that the certification of the Union is
therefore invalid.
The Representation Proceeding '
Upon petition filed under Section 9 ( c) of the Na-
tional Labor Relations Act (29 U.S.C.A. 159(c))
on May 2, 1969 , by United Furniture Workers of
America , AFL-CIO, herein called the Union, a
hearing was held before a Hearing Officer of the
National Labor Relations Board on May 27, 1969.
Upon such petition and hearing , the Regional
Director for Region 11 of the Board , on July 10,
1969, issued a Decision and Direction of Election
in an appropriate bargaining unit , described
hereinafter , of the employees of Town and Country
Manufacturing Co. of Texas , Inc., herein called the
Respondent.
Pursuant to the Decision and Direction of Elec-
tion , an election by secret ballot was conducted on
August 8 , 1969, under the supervision and
direction of the Regional Director among the em-
ployees in the appropriate unit to determine the
question concerning representation . Immediately
following the election the parties were served with
copies of the tally of ballots which showed that of
approximately 220 eligible voters 206 cast ballots,
of which 107 were for and 90 against the Union.
There were nine challenged ballots . On August 15,
1969, the Respondent filed timely objections to
conduct affecting the results of the election alleg-
ing, in sum , that the Union in its campaign engaged
in coercive conduct in the nature of threats and
racist propaganda which destroyed the conditions
necessary for a free choice by the employees.
On October 28, 1969 , the Regional Director is-
sued a Supplemental Decision and Certification of
Respesentative in which he stated that he had con-
ducted an investigation of the objections, found
that the objections raised no substantial or material
issues with respect to the election, overruled the
objections , and certified the Union as the represen-
tative of the employees in the appropriate unit. As
' Administrative or official notice is taken of the record in the represen-
tation proceeding, Case I I-RC-2922, as the term "record" is defined in
Sec 102 68 and 102 69(f) of the Board's rules ( Rules and Regulations and
Statements of Procedure, National Labor Relations Board , Series 8, as
amended) See LTV Electrosystems, Inc , 166 NLRB 938, enfd 388 F 2d
683 (C A 4), Golden Age Beverage Company, 167 NLRB 151, enfd 415
F 2d 26 (C A 5), Intertype Co v Penello, 269 F Supp 573 (D C Va ), In-
tertype Co v N L R B , 401 F 2d 41 (C A 4), Follett Corp, et al , 164
NLRB 378, enfd 397 F 2d 91 (C A 7), Sec 9(d) of the National Labor
Relations Act
184 NLRB No. 111
TOWN AND COUNTRY MANUFACTURING CO.
to the challenged ballots, the Regional Director
stated that they were not sufficient in number to af-
fect the results of the election. On November 12,
1969, the Respondent filed with the Board in
Washington, D.C., a request for review of the
Regional Director's Supplemental Decision and
Certification of Representative.
On January 8, 1970, the Board issued an order
denying the Respondent 's request for review of the
Regional Director 's Supplemental Decision and
Certification of Representative on the ground that
it raised " no substantial issues warranting review."
The Complaint Case
On January 28, 1970, United Furniture Workers,
AFL-CIO, Local 273, filed an unfair labor practice
charge alleging , inter alia , that on or about August
22, 1969, the Respondent refused to bargain with
the Union.
On January 30, 1970, the General Counsel, by
the Regional Director issued a complaint and
notice of hearing alleging that the Respondent had
committed unfair labor practices in violation of
Section 8(a)(1) and (5) and Section 2(6) and (7)
of the Act by refusing to bargain with the Union
upon request, since on or about January 26, 1970.
On February 9, 1970, the Respondent filed its
answer to the complaint in which it admitted most
of the material allegations of the complaint but de-
nied the commission of unfair labor practices and
the validity of the certification. Respondent further
denied allegations in paragraph 6 of the complaint
to the effect that Larry Pinchback and Richard
Aaron were, respectively, vice president and su-
perintendent of the Respondent and Respondent's
agents and supervisors. Respondent asserted lack of
knowledge as to whether the Union was a labor or-
ganization within the meaning of Section 2(5) of
the Act as alleged in paragraph 5 of the complaint.
The answer admitted that since on or about Janua-
ry 26, 1970, the Respondent has refused and con-
tinues to refuse to meet with or bargain with the
Union for the reasons that the Union did "not
represent an uncoerced majority of the production
and maintenance employees" and that "the certifi-
cation has not yet been approved and ratified by
any United States Court."
On April 6, 1970, counsel for General Counsel
filed a motion for summary judgment on the ground
that the Respondent's answer did not raise any tria-
ble issue. On April 7, 1970, I issued an order to
show cause on General Counsel's motion for sum-
mary judgment returnable April 21, 1970. On April
10, 1970, the Respondent filed an opposition to
2 Krieger-Ragsdale & Company, Inc , 159 NLRB 490, enfd 379 F 2d 517
(C.A 7), cert denied 389 U S 1041, N L R B v Macomb Pottery Com-
pany, 376 F 2d 450 (C A 7) See Pittsburgh Plate Glass Co v N L R B ,
313 U.S. 146, 162, NLRB Rules and Regulations, Sec. 102 67(f) and
102 69(c)
' O K Van and Storage, Inc, 127 NLRB 1537, enfd 297 F 2d 74 (C A
5) See Air Control Products of St Petersburg, Inc , 335 F 2d 245, 249 (C A
921
General Counsel's motion for summary judgment.
On April 15, 1970, counsel for the General Counsel
filed a response to Respondent's opposition. No
submissions have been received from any other par-
ty.
Ruling on Motion for Summary Judgment
In its opposition to the motion of General Coun-
sel for summary judgment the Respondent urges
that the General Counsel' s motion should be denied
for the following reasons: (1) that in order to pro-
vide either the Board or the circuit court with an
adequate record upon which to make the deter-
mination as to whether or not material and substan-
tial factual issues exist that require hearing on the
Respondent's objections to the election held in
Case I1-RC-2922, which objections would also
serve as a defense for the refusal-to-bargain charge
in the instant case, the Respondent should be al-
lowed to proceed to a hearing, where it may
present offers of proof; (2) that the case raises
material and substantial issues of fact which require
that the Respondent be given a hearing as a matter
of right.
It is established Board policy, in the absence of
newly discovered or previously unavailable
evidence or special circumstances, not to permit
litigation before a Trial Examiner in an unfair labor
practice case of issues which were or could have
been litigated in a prior related representation
proceeding.2 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.3 Respondent does not claim to present any
newly discovered or previously unavailable
evidence or special circumstances, and the Board
has determined that no substantial and material is-
sues have been raised by the objections. At this
stage of the proceeding, the Board's determination
is therefore the law of the case.
There thus being no unresolved issues requiring
an evidential hearing the motion of General Coun-
sel for summary judgment is granted and I hereby
make the following further:
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF THE RESPONDENT
Town and Country Manufacturing Co. of Texas,
Inc., is, and at all times material herein has been, a
Texas corporation engaged in the manufacture of
mobile homes at its plant in Sumter, South
5) "If there is nothing to hear, then a hearing is a senseless and useless for-
mality "See also NLRB v Bata Shoe Co , 377 F 2d 821, 826 (C A 4),
cert deny 389 U S 917 " there is no requirement, constitutional or
otherwise , that there be a hearing in the absence of substantial and material
issues crucial to determination of whether NLRB election results are to
be accepted for purposes of certification "
922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Carolina, said plant being the only one involved in
these proceedings.
Respondent, during the past 12 months, a
representative period, manufactured, sold, and
shipped from its Sumter, South Carolina, plant, to
points directly outside the State of South Carolina,
goods valued in excess of $50,000.
Respondent is now, and at all times material
herein has been, an employer engaged in commerce
within the meaning of Section 2(6) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
United Furniture Workers of America,
AFL-CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.4
III. THE UNFAIR LABOR PRACTICES
The following employees of Respondent con-
stitute a unit appropriate for purposes of collective
bargaining within the meaning of Section 9(b) of
the Act:
All production and maintenance employees in-
cluding draftsmen and the line inspector at the
Employer's Sumter, South Carolina, plant, ex-
cluding office clerical employees, salesmen,
truckdrivers, servicemen, dispatcher and
assistant dispatcher, professional decorator,
guards and supervisors as defined in the Act.
On October 28, 1969, the Union was certified as
the exclusive collective-bargaining representative of
the employees in the appropriate unit for the pur-
poses of collective bargaining , and by virtue of Sec-
tion 9(a) of the Act is the exclusive representative
of all the employees in the said unit with respect to
rates of pay, wages, hours of employment, and
other terms and conditions of employment.
At all times since on or about January 26, 1970,
though requested by the Union to bargain, the
Respondent has refused to bargain collectively with
the Union as such representative.
By thus refusing to bargain collectively Respon-
dent has engaged in unfair labor practices in viola-
tion of Section 8(a)(5) of the Act and has inter-
fered with, restrained, and coerced its employees in
violation of Section 8(a)(1) of the Act.
The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7)
of the Act.
Upon the foregoing findings and conclusions,
pursuant to Section 10(c) of the Act, I recommend
that the Board issue the following:
ORDER
A. For the purpose of determining the duration
of the certification, the initial year of certification
shall be deemed to begin on the date the Respon-
dent commences to bargain in good faith with the
Union as the recognized exclusive bargaining
representative in the appropriate unit.5
B. Town and Country Maunfacturing Co. of
Texas, Inc., its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with United
Furniture Workers of America, AFL-CIO, as the
exclusive collective-bargaining representative of the
employees in the following appropriate bargaining
unit:
All production and maintenance employees in-
cluding draftsmen and the line inspector at the
Employer's Sumter, South Carolina, plant, ex-
cluding office clerical employees, salesmen,
truckdrivers, servicemen, dispatcher and
assistant dispatcher, professional decorator,
guards and supervisors as defined in the Act.
(b) Interfering with the efforts of said Union to
negotiate for or represent employees as such exclu-
sive 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
United Furniture Workers of America, AFL-CIO,
as the exclusive representative of all employees in
the appropriate unit with respect to rates of pay,
wages, hours of employment, and other terms and
conditions of employment, and embody in a signed
agreement any understanding reached.
(b) Post at its place of business in Sumter, South
Carolina, copies of the attached notice marked
"Appendix."' Copies of said notice, on forms pro-
vided by the Regional Director for Region 11, after
being duly signed by Respondent's authorized
representative, shall be posted by the Respondent
immediately upon receipt thereof, and be main-
tained by Respondent for 60 consecutive days
thereafter, in conspicuous places, including all
places where notices to employees are customarily
4 In the representation case the Union was described as a labor organi-
zation in the Decision and Direction of Election No issue appears to
have been raised in that respect No request for review on the basis of
the Union's status as a labor organization was filed. The matter is there-
fore not open to dispute here
S The purpose of this provision is to insure that the employees in the
appropriate unit will be accorded the services of their selected bargaining
agent for the period provided by law See Mar-Jac Poultry Company,
Inc, 136 NLRB 785, Commerce Company dlbla Lamar Hotel, 140
NLRB 226, 229, enfd . 328 F 2d 600 (C A. 5), cert denied 379 U S
817; Burnett Construction Company, 149 NLRB 1419, 1421, enfd
350 F 2d 57 (C A. 10).
6 In the event no exceptions are filed as provided by Section 102.46
of the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, recommendations, and Recommended Order
herein shall, as provided in Section 102 48 of the Rules and Regulations,
be adopted by the Board and become its findings, conclusions, and order,
and all objections thereto shall be deemed waived for all purposes. In
the event that the Board's Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board "
TOWN AND COUNTRY MANUFACTURING CO.
posted. Reasonable steps shall be taken by Respon-
dent to insure that said 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 have been taken to comply
herewith.'
In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director
for Region 11, in writing, within 10 days from the date of this Order,
what steps Respondent has taken to comply herewith "
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively
with United Furniture Workers of America,
AFL-CIO, as the exclusive collective -bargain-
ing representative of all the employees in the
following appropriate unit:
All production and maintenance em-
ployees including draftsmen and the line
inspector at our Sumter, South Carolina,
plant, excluding office clerical employees,
salesmen, truckdrivers , servicemen,
dispatcher and assistant dispatcher,
923
professional decorator, guards and super-
visors as defined in the Act.
WE WILL NOT interfere with the efforts of the
Union to negotiate for or represent employees
as exclusive collective-bargaining representa-
tive.
WE WILL bargain collectively with the Union
as the exclusive collective-bargaining represen-
tative of the employees in the appropriate unit
and, if an understanding is reached, we will
sign a contract with the Union.
TOWN AND COUNTRY
MANUUFACTURING CO. OF-
TEXAS, INC.
(Employer)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or com-
pliance with its provisions may be directed to the
Board's Office, 1624 Wachovia Building, 301
North Main Street, Winston-Salem, North Carolina
27101, Telephone 919-723-9211.