Volney Felt Mills, Inc.

National Labor Relations Board - Board Decisions

Dec 30, 1952

101 N.L.R.B. 1516 (N.L.R.B. 1952)

1516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
are engaging in- unfair labor practices within the meaning of Section
8 (a) (1) (3) of the Act.
p 7. By interfering with, restraining, and coercing their employees in the exer-
cise of the rights guaranteed in Section 7 of the Act, said Respondents have
engaged in unfair labor practices within the meaning of Sections 8 (a) (1) of
the Act.
8. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
9. Edouard Cote has not engaged in unfair labor practices within the meaning
of Section 8 (a) (1), (3), and (5) of the Act.
[Recommendations omitted from publication in this volume.]
VOLNEY FELT MILLS, INC. and UNITED PAPER WORKERS OF AMERICA,
CIO. Case No. 32-CA-166. December 30, 1952
Decision and Order
On February 19, 1952, Trial Examiner George A. Downing 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 there-
from and take certain affirmative action, as set forth in the copy of
the Intermediate Report attached hereto. The Trial Examiner also
found that the Respondent had not engaged in certain other alleged
unfair labor practices and recommended dismissal of these allegations.
Thereafter, only the Respondent filed exceptions to the Intermediate
Report and a supporting brief.
The Board has reviewed the Trial Examiner's rulings made at the
hearing and finds that no prejudicial error was committed. The
rulings 'are hereby affirmed. The Board has considered the Interme-
diate Report, the exceptions and brief, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner insofar as consistent herewith.,
The Board has now reviewed and reexamined all the evidence in this
case, and hereby reaffirms its determination of September 13, 1951,
that the Regional Director did not act arbitrarily or capriciously and
that therefore the Board would not and should not interfere, in view
of the consent election agreement signed by the Respondent 2 Accord-
ingly, we find, as did the Trial Examiner, that the Regional Director's
certification of the Union was valid, and that the Respondent has,
3 Absent exceptions to the recommendations of the Trial Examiner dismissing the allega-
tions of the complaint that the Respondent had engaged in violation of Sections 8 (a) (3)
and 8 ( a) (1) of the Act, we adopt them.
2D & D Transportation Company , 100 NLRB 920; Merrimao Hat Corporation, 85
NLRB 329; McMullen Leavens Company , 83 NLRB 948 ; N. L. R. B. v. Capitol Greyhound
.Lines et at., 140 F. 2d 754 ( C. A. 6), cert . den. 322 U. S. 763, enforcing 49 NLRB 156.
101 NLRB No. 240.
VOLNEY FELT NIILLS, INC. 1517
since August 16, 1951, refused to bargain collectively with the Union
as the exclusive representative of the employees in the agreed appro-
priate unit and has thereby engaged in unfair labor practices in
violation of Section 8 (a) (5) and (1) of the Act.
Order
Upon the entire record in the case and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Volney Felt
Mills, Inc., Memphis, Tennessee, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from refusing to bargain collectively with United
Paper Workers of America, CIO, as the exclusive collective bargaining
representative of its employees in the following appropriate unit :
All production and maintenance employees at the Memphis, Tennes-
see, plant, excluding all office and clerical employees, watchmen-guards,
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 Paper Workers
of America, CIO, as the exclusive representative of its employees in
the aforesaid appropriate unit.
(b) Post at its plant at Memphis, Tennessee, copies of the notice
attached hereto as an appendix.' Copies of said notice, to be furnished
by the Regional Director for the Fifteenth 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 custpmarily
posted. Reasonable steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered by any other
material.
(c) Notify the Regional Director for the Fifteenth Region, in
writing, within ten (10) days from the date of this Order, what steps
the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed to the extent that it alleges that the Respondent engaged in
discrimination or in interference, restraint, or coercion in violation of
Sections 8 (a) (3) and 8 (a) (1) of the Act.
MEMBER HOUSTON took no part in the consideration of the above
Decision and Order.
8 In the event that this Order is enforced by a 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."
1518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Appendix
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 :
'"TE WILL bargain collectively, upon request, with UNITED PAPER
WORKERS OF AMERICA, CIO, as the exclusive representative of all
our employees in the bargaining unit described below, with re-
spect to rates of pay, wages, hours of employment, and other con-
ditions of employment, and if an agreement is reached, embody
such understanding in a signed contract.
The bargaining unit is :
All production and maintenance employees employed at
our Memphis, Tennessee, plant, excluding all office and cler-
ical employees, watchmen-guards , and supervisors as defined
in the Act.
VOLNEY FELT MILLS, 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..
Intermediate Report and Recommended- Order
STATEMENT OF THE CASE
This proceeding brought under Section 10 ( b) of the National Labor Relations
Act, as amended ( 61 Stat . 136), was heard in Memphis , Tennessee, on Decem-
ber 3 , 4, and 5, 1951 , pursuant to due notice to all parties . The complaint,
issued on October 25, 1951 , by the General Counsel of the National Labor Rela-
tions Board; based on charges filed by the Union and served on Respondent,
alleged in substance that Respondent had committed unfair labor practices
proscribed by Section 8 (a) (1), (3 ), and (5 ) of the Act by ( 1) discharging,
discriminatorily , Amos Partain on August 29, 1950, and thereafter refusing to
reinstate him; (2 ) refusing on August 16, 1951 , September 19, 1951 , and since
to bargain with the Union, which since August 10, 1951, had been the certified
representative of Respondent 's employees in an appropriate unit; and (3) en-
gaging in specified acts of interference , restraint , and coercion from about
June 8, 1950.
Respondent , by its answer filed November 7, 1951, denied the commission of
unfair labor practices as alleged . Its motion to dismiss , filed contemporaneously,
1 The General Counsel and his representatives at the hearing are referred to herein as
the General Counsel and the National Labor Relations Board as the Board. The above-
named company is referred to as Respondent and the charging union, above named, as the
Union.
VOLNE,'jJ'l MILLS, INC, .1M8
was denied by Trial Examiner B. G. Eadie , on November 14, and its motion for
a bill of particulars was granted in part and was complied with by the General
Counsel on November 23, 1951.
All parties were represented at the hearing by counsel or by representatives
and were afforded full opportunity to be heard , to examine and cross-examine
witnesses , to introduce relevant evidence , to argue orally , and to file briefs and
proposed findings , Various motions were made and were disposed of during
the hearing . Oral argument was waived . Respondent has filed a brief.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a Delaware Corporation with its principal office in Chicago,
Illinois, and with plants at Memphis , Tennessee , and in other States . Only the
Memphis plant is involved herein. Respondent purchased during the year prior
to the issuance of the complaint raw materials to use in the manufacture of dry
felt valued in excess of $200,000, 30 percent of which came from States other
than the State of Tennessee . During the same period Respondent manufactured
and distributed finished products of an approximate value of $300 ,000, 30 percent
of which was shipped to States other than the State of Tennessee . These facts
establish , and it is found, that Respondent is engaged in interstate commerce
within the meaning of the Act.
IL THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization admitting to membership employees of
Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Introduction ; synopsis of main events and issues
Respondent 's Memphis plant is engaged in the manufacture of dry felt which is
used in the manufacture of a low grade of roll roofing . Most of its output goes to
Lloyd Fry Roofing Company, of whom Respondent is a subsidiary and whose
roofing plant occupies another portion of the same building which houses Re-
spondent 's plant . In fact only a fire wall and a space of some 25 feet separates
Fry's plant ( sometimes referred to in the record as "the roofing department")
and the point at which the dry felt comes off of Respondent's machine. Leon
Hecht, Respondent's plant manager, was also plant manager of Fry, and Marty
Wojcik , assistant plant manager, was also assistant manager of Fry . Respond-
ent's other supervisors were Robert'A. Bishop, superintendent, and the tour fore-
men, Claude Steelman, Sr., and Willis Brown.
Respondent recognized the Union In June 1949, and in April 1950 It entered
into a contract with the Union for a 1-year term. On August 28, 1950, Re-
spondent discharged Amos Partain because of alleged errors in his marking of
the completed product. The General Counsel asserts that the discharge was
discriminatorily motivated, and relies for proof of discrimination, as well as of
alleged interference, restraint, and coercion, on alleged statements by Steel-
man, Sr.
On Respondent's petition filed In February 1951 and on a consent election agree-
ment dated April 3, an election was held on April 6, as a result of which the
Regional Director issued a certification of representatives to the Union on May
1520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
18, 1951, after disposing of challenged ballots and objections to the election.
Following Respondent's motion for reconsideration and exceptions to the report
and certification , the Regional Director issued a supplemental report and a
further certification on August 10, 1951. Respondent thereafter refused to bar-
gain with the Union, and defends its refusal on the ground, first, that it had not
intentionally or knowingly waived its right to a hearing on questions concern-
ing the election and that no such hearing was held , and, second , that the Regional
Director's rulings on the challenged ballots were arbitrarily and capriciously
made.
B. Alleged discrimination; alleged interference, restraint, and coercion
The evidence which the General Counsel relied upon to establish that Respond-
ent had engaged independently in acts of interference, restraint, and coercion was
developed as an incident to the attempt to prove that Respondent had discharged
Partain because of his union membership. Since these alleged unfair labor
practices are, therefore, inseparably intertwined, they will be considered together.
Partain was employed on February 10, 1950, as third hand on the felt machine,
on which the order of seniority ran as follows : Machine tender, back tender,
third hand. In July 1950, Partain was promoted to back tender after having
filed an earlier grievance concerning an opening on that job to which he felt
he was entitled. Partain was discharged by Bishop on August 28 for the
asserted reason that he had erroneously marked the tensile strength and the
saturation figures on several rolls of felt produced on his shift on the night of
August 27, which mismarkings had resulted in substantial interruption and
damage to the operations of Respondent's customer (and affiliate), Lloyd Fry
Roofing Company.
An understanding of the issues will be facilitated by first describing Respond-
ent's operations and Partain's duties and reviewing the events which led to the
discharge.
The machine on which Partain worked was in excess of 100 feet in length ;
it manufactured the felt paper from a mixture prepared in the beater room.
In the event the product was not of proper tensile strength and saturation,
adjustments were made in the formula in the beater room. The "wet" end of
the machine was operated by the machine tender and the "dry" end by the
back tender, who was assisted by the third hand. The machine tender period-
ically ran tests on the tensile strength and the percentage of saturation and
entered the results on his report at his desk at the "wet" end. The back tender
was required to obtain the tensile and saturation figures from the report and to
enter them on a ticket which was pasted to each completed roll of paper as it
came off the "dry" end. The third hand in turn stenciled the figures from the
ticket onto the roll so that they might be more conveniently checked by
subsequent handlers.
The evidence is undisputed that the recording of accurate figures on the
rolls was essential to the proper use of Respondent's product by its customers
in the manufacture of roll roofing, since costly breakdowns and wastage would
occur from reliance on inaccurate figures, particularly in the tensile strength.
Indeed, General Counsel's witnesses admitted that the recording of the proper
tensile and saturation figures was the most important part of the back tender's
job.
When the output on Partain's shift reached the Fry Roofing Company on the
night of July 27, trouble developed on the first 2 rolls, which resulted in a
40-minute shut-down of operations and a loss of work time by 33 employees.
An investigation was begun the next morning by Wojcik and Bishop, who dis-
VOLNEY FELT MILLS , INC . 1521
covered from tests that though the machine tender had correctly recorded the
tensile and saturation figures in his report, Partain had entered inaccurate
figures on the tickets. Upon checking the 8 remaining rolls which had been
produced on Partain 's shift and which had also been delivered to Fry, Wojcik
and Bishop discovered that Partain had similarly recorded inaccurate tensile
figures on 7 of the 8 and inaccurate saturation figures on 6 of the 8.
Bishop called Partain in at the end of his next shift and told him of his
errors and that the mistakes were serious because of the trouble which had been
caused in the Fry plant. Partain admitted that be had "possibly" made the
mistakes , since the mismarked rolls had been produced on his shift. Bishop
informed Partain that if the errors had been caught before delivery of the felt
to Fry, they could have been corrected, but that since they had not, Respondent
was unable to rectify them and that Partain was "through," i. e., discharged.
Partain attempted to explain or discuss the matter further, but Bishop directed
him to see Hecht the next morning if he had anything further to say.
Partain immediately reported his discharge to Rinaldi, who accompanied
Partain to the plant the next morning. Hecht also called Rinaldi into the dis-
cussion , and confronted them with a list of Partain's mismarkings , which Partain
did not deny. Rinaldi contended only that the errors did not warrant the severe
penalty of discharge and pleaded that Respondent give Partain another chance.
Hecht refused to do so because of the seriousness of the errors. A grievance was
subsequently filed by the Union and a grievance meeting was held thereon,
without change in Respondent's position.
To sustain his position that Respondent was discriminatorily motivated in
making the discharge, the General Counsel offered the testimony of Partain,
Porter Rhudy, and V. L. Baker that Claude Steelman, Sr., a tour foreman, had
developed and expressed antipathy to Partain because Partain had joined the
Union and that Steelman had stated his intention to "get even" with Partain.
That evidence is now summarized.
Partain testified that before his employment at Volney he and Steelman had
been friendly and had attended the same church ; that Steelman visited him at
home early in February and inquired whether Partain would take a job at
Volney. Partain agreed. Steelman inquired whether Partain would join the
Union, and Partain told him he would not. Steelman later took Partain to
Bishop 's office and recommended him for employment, stating among other
things that Partain was an unusual man and that Steelman did not believe
that Partain would join the Union. Bishop thereupon hired Partain as a
third hand.
Steelman denied having discussed the Union with Partain prior to his em-
ployment and denied making the statement to Bishop which Partain attributed
to him. Bishop corroborated Steelman's testimony concerning the hiring
Interview.
V. L. Baker testified that he had been employed by Respondent as a tour boss
for 11 months prior to December 8, 1950; that he was present on an occasion
when Steelman had recommended Partain to Bishop for employment ; that
Steelman then made no reference to the Union, but that on some occasion, which
Baker fixed as within a week of Partain's hiring, Steelman had stated to him
that Partain would not join the Union. Baker also testified that some time after
Partain joined the Union (in late June or July) Steelman commented that
Partain had let him down and joined the Union. The General Counsel then
attempted to refresh Baker's memory as to additional alleged statements by
Steelman from an affidavit given a field examiner during the Board's investiga-
tion of the charges. Baker first claimed his inability to read the affidavit, re-
1522 DECISIONS OF NATIONAL LABOR RELATIONS- BOARD
quired that it be read to him, and then testified that the only additional thing he
recalled was that Steelman had said that Partain had double-crossed hiss and
that he would get even with Partain.
Steelman denied making the statements concerning Partain which Baker
attributed to him and denied mentioning or discussing the subject of the Union
or Partain's membership therein with Baker or anyone else.
In July 1950, Partain, assuming that he had been passed over for promotion
to a vacancy on a back tender's job, filed a grievance which was handed to
Steelman (though Steelman was not Partain's tour boss at the time.) Steelman
reported the grievance to Bishop, who directed Steelman to explain to Partain
that there was in fact no opening on the back tender's job at the time, since the
back tender in question was ill and his place was being filled temporarily ( as was
customary) by the third hand on that shift, and that Partain would have to wait
until it could be determined whether the back tender would return or quit.
Steelman later called Partain and Porter Rhudy (the shop steward) into
Bishop's office in the presence of Willis Brown, another tour foreman. Steelman
and Brown testified that Steelman thereupon made the explanation which
Bishop had directed. Partain appeared to be satisfied and accepted return of his
grievance.
Partain testified, and Steelman and Brown denied, that Steelman had also
stated that:
... the Union was a work of the devil and mark of the beast and a man
couldn't go to Heaven joining the Union, and I turned my back on him and
lied to him by joining the Union. . . . And that if he had knew that, he
would never have recommended me for the job. He had helped to get the
job for me and now I turned my back on him and almost caused him to lose
his job.
Porter Rhudy gave conflicting and contradictory testimony which is of scant
assistance in resolving the conflict. He testified first that Steelman told Partain
that he should not have turned his back on Steelman after Steelman had gotten
Partain his job and that "he thought that it was the work of the devil what we
was doing ." Rhudy denied , however , that Steelman had mentioned the Union.
The General Counsel thereupon attempted to refresh Rhudy's recollection from
a prior affidavit given during the investigatory stage, but Rhudy was still unable
to recall that Steelman had mentioned the Union, but testified that he (Rhudy)
"took it that that is what [Steelman] meant."
The resolution of the foregoing conflicts is facilitated by the following circum-
stances: (a) Possible bias on Baker's part was developed on cross-examination
from Baker's admission that he had been discharged by Respondent for drunken-
ness while on duty. (b) Rhudy's partial corroboration of Partain was uncertain
and unpersuasive. (c) Baker and Rhudy responded with obvious reluctance to
the attempts to refresh their memories from prior affidavits. (d) The Union was
the established representative of Respondent's employees, and at the time of the
grievance meeting its contract had 9 months to run. (e) It was improbable that
Steelman would have made remarks of the nature testified to by Partain in a
grievance meeting and in the presence of the union steward. (f) Rhudy did not
protest or lodge a grievance with management. (g) Partain's grievance in no
way reflected upon Steelman. (h) Partain was promoted to the back tender's job
approximately a week after he filed his grievance, without claim or suggestion
that Steelman attempted to block it or to interfere. (I) The grievance filed
after Partain 's discharge , which bore his signature , was based on the "slight
VOLNEY FELT MILLS, INC . 1523
mature" of Partain 's errors ; it made no reference to Steelman 's statements and
no contention that the discharge was discriminatorily motivated . ( j) No refer-
ence was made to Steelman 's remarks in the meeting with Hecht on August 29
nor in the subsequent grievance meeting, which was attended by Porter Rhudy.
These circumstances require the crediting of Steelman's testimony , which was
-corroborated on important points by Bishop and Brown , and the rejection of
Partain 's, Baker's, and Rhudy 's. The foregoing evidence therefore fails to
establish that Respondent acted through discriminatory motives in discharging
Partain.'
The General Counsel, however, pointing to other evidence which related to Re-
spondent 's defense that the discharge was for cause, claims that a discriminatory
motive should be inferred from the following: (1) That considerable operational
difficulties had prevented Partain from recording correct figures ; (2) that Par-
tain had obtained at least some of the erroneous figures verbally from the machine
tender ; and (3) that the harsh penalty of discharge was disproportionate to the
seriousness of the errors and that no other employee had been discharged for
such an offence.
The evidence does not support the General Counsel's first contention. In the
first place the shift output of 10 rolls was a good one-almost very good-which
fact belied the claim of serious difficulties made by the General Counsel's wit-
nesses. Secondly, only a minute's time per roll was required, at best, for the
back tender to obtain the figures from the machine tender's report and to record
them. Nor is Partain's excuse persuasive that he obtained half the figures
from machine tender James Rhudy. First, the practice was contrary to Re-
spondent's instructions' Second, though Rhudy admitted he may have given
Partain some of the figures verbally, he testified he gave Partain the correct
ones. Moreover, there was no evidence that Partain offered the excuse to
management or that Respondent was otherwise aware of it.
Equally unpersuasive is the contention that no other employee had been so
severely disciplined. The short, obvious, and complete answer is that no other
employee had committed such glaring, widespread, and costly mistakes.' Indeed,
2 Indeed , were the credibility issues resolved in favor of Partain 's version , the evidence
establishes that Steelman 's alleged views toward Partain and the Union were never ex-
pressed to or discussed with management officials and that Steelman was not consulted
about Partain 's discharge and took no part in it. Furthermore , Steelman was not at the
plant on the night that Partain 's errors occurred and had no connection with the
investigation thereof.
3 James Rhudy testified that on the night of August 27 he had been instructed by tour
foremen Brown and Baker to record saturation figures which varied from his own He
testified further that on subsequent occasions Steelman and Brown had similarly directed
the recording of inaccurate saturation figures. Steelman and Brown denied Rhudy's
charges. They testified that the tour foremen periodically ran tests and compared the
results with those obtained by the machine tender and that if there was substantial vari-
ance , they would suggest to the machine tender that he recheck his figures or run another
test . Their testimony is credited in view of Rhudy's admissions on cross -examination
that though knowing the matter was serious and that he was jeopardizing his job, he did
not report to Bishop, made no complaint to the Union , and filed no grievance . Actually,
Rhudy's charge , if true, would not have reached the basis of Partain 's discharge , for the
following reasons : Bishop and Wojcik found from their tests that the machine tender's
figures were accurate and that it was Partain 's which varied therefrom . Had Partain
copied correctly inaccurate figures in the machine tender's report , Rhudy's testimony would
have been nearer the mark . Furthermore , it was the recording of incorrect tensile figures-
not saturation-which had resulted in the breakdown at Fry's.
4 The evidence shows that on some occasions back tenders had discovered and had cor-
rected their own errors before the rolls left the machine room , and in rare instances after
the rolls reached Fry 's warehouse , but before use.
242305-53-97
1524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it is difficult to imagine how a process of simple error could account for the mis-
marking of approximately all of the shift output
The General Counsel's claim that Partain had not received proper training on
the back tender 's job is also unpersuasive . As third hand for some 5 months,
Partain had served as an assistant to the back tender and would obviously have
become thoroughly acquainted with the back tender 's duties before entering upon
the.job in his own right . Furthermore , Partain had actually served as back
tender for 6 weeks , and was well aware of Respondent 's instructions and of the
importance of following them.
Events subsequent to the discharge are similarly of no assistance to the General
Counsel . Thus, there was no claim before Hecht, nor in the grievance meeting
which followed, that Partain had been discharged on account of his union mem-
bership, and there was no reference at any time to Steelman's alleged attitude
toward , or threat to get even with , Partain . Instead, the Union 's position was
mainly one of attempting to persuade Respondent that discharge was too harsh
a penalty for the errors which Partain had concededly committed e
It is therefore concluded and found from the entire evidence that the General
Counsel has not established by a preponderance of the evidence that Respondent
discharged Partain because of his union membership and activities, but to the
contrary the evidence establishes that Respondent discharged him for the cause
asserted by it.
It is also concluded and found , from the evidence above summarized , that Re-
spondent has not engaged in interference , restraint , and coercion within the
meaning of Section 8 (a) (1).
C. The refusal to bargain
1. The appropriate unit and the Union 's certification
All production and maintenance employees employed at Respondent's Mem-
phis, Tennessee, plant, excluding all office and clerical employees , watchmen-
guards, and all supervisors as defined in the Act , constitute a unit appropriate
for the purpose of collective bargaining within the meaning of Section 9 (b)
of the Act.
On August 10, 1951 , the Regional Director for the Fifteenth Region of the
Board certified the Union as the exclusive representative for the purposes of
collective bargaining of Respondent 's employees in said unit.
2. The evidence concerning the refusal to bargain
All issues concerning the Respondent 's refusal to bargain involve the validity
of the Regional Director 's certification , mentioned above, and turn on events
relating to the arrangements for the election and to the Regional Director's
subsequent handling, investigations , and disposition of challenged ballots and
B At the Trial Examiner 's invitation to advance a theory which might account for
Partain's widespread errors, Hecht suggested the possibility that Partain was "covering
up" for James Rhudy , the machine tender on the shift That theory is obviously unsound,
since the tests made by Bishop and Wojcik established the accuracy of the machine
tender's figures . Moreover, any attempted covering up would have been exposed by such
an incident as actually occurred , since the machine tenders ' reports were preserved as a
record.
P Though at times contending that Respondent had failed to offer proof that Partain
had made the errors, union representatives consistently refused Respondent 's invitation
to check the machine tender 's report against the rolls themselves , which Respondent had
preserved.
VOLNEY FELT MILLS, INC. 1525
other election questions . Because of the nature and vehemence of Respondent's
attack on the Regional Director and his representatives , the evidence which per-
tains to the foregoing matters will be set forth in detail.
a. Events preceding the election
On April 19, 1950, Respondent and the Union had entered into an agreement
to be effective for 1 year and thereafter from year to year unless written notice
was given , of a desire to terminate or modify the contract . On February 14,
1951, the Union wrote Respondent of its desire to amend the contract. On Feb-
ruary 15, before receipt of the Union's letter, Respondent wrote the Union
giving notice of termination as of April 19. On February 22, Respondent, by
Lang, wrote the Board 's Subregional Office in Memphis , enclosing a formal rep-
resentation petition , which was signed by Lang as its attorney . By letter of
February 23, Anthony J. Sabella, officer in charge of the Memphis office, re-
quested Respondent to submit an alphabetical list of all employees in the unit.
and Hecht complied on March 2 with a payroll list for the period ending
February 25.
The arrangements for the holding of an election , including the obtaining of
an agreement for a consent election, where later handled, at Sabella's direction,
by Flo B . Spawr , office manager of the Memphis office. Spawr testified that on
March 30 she called Hecht on the telephone for the purpose of obtaining the
necessary information for filling in the election agreement forms and that she
and Hecht then agreed on the following matters, which she typed into the two
different forms which were provided by the Board for election agreements : °
Payroll period for eligibility; Period ending April 1, 1951.
Date, hours , and place of election : Friday, April 6, 1951; 6:45 a. in. to
7: 30 a. in. ; 2: 45 p. in. to 3: 15 p. in. ; in the Superintendent's Office.
Spawr testified that she prepared both forms because Sabella informed her
he did not know which one Respondent wanted, and that Sabella directed her
to ascertain from Hecht if Lang had advised Hecht which form he preferred.
Spawr admitted knowing that Lang was Respondent's attorney and that he was
currently engaged in the hearing in Arkansas of an unfair labor practice case
which had arisen out of the Memphis office ; she admitted also that she made no
attempt to get in touch with Lang about the matter.
On April 3, Spawr called Hecht for an appointment and took to his office the
two election agreement forms. Spawr testified that she explained that her
mission was to obtain Hecht's signature to an agreement for an election, that
she laid the two forms on Hecht 's desk before him, and inquired whether Lang
had advised him what type of agreement to sign . Hecht replied that Lang had
not. Spawr stated that Hecht had the option of signing one of the two forms,
4 Both agreements provided that the election shall be held under the supervision of the
Regional Director and in accordance with the Act and the Board's Regulations Under
the agreement for consent election, the parties agree that the Regional Director shall de-
termine all election questions, including eligibility of voters, the method of investigation
of objections and challenges , and the question whether a hearing shall be held thereon,
and that his decision shall be final and binding Under the form of stipulation for consent
election, the parties agree that post-election procedure shall be in conformity with the
Board's Rules and Regulations. The Regulations (Section 102 61 (b)) provide that on
exceptions to the Regional Director's report on challenged ballots and objections, the
Board may decide the matter forthwith upon the record, or, if it appears to the Board
that the exceptions raise substantial and material factual issues , the Board may direct a
hearing before the Regional Director or other agent of the Board . Cf. International Shoe
Co, 87 NLRB 479, footnote 6.
1526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Hecht replied that he was busy and requested that she explain the differ-
ence between the two . Spawr explained that under the consent election form
the certification would be issued by the Regional Director and that all decision
after the election would be made by the Regional Director ; that under the stipu-
lated election form the certification would be issued by the Board in Washington
and that decisions after the election would come out of Washington; and that,
therefore, the consent election afforded the quickest and most expeditious way of
handling the matter. She explained , however , that the conduct of the election
would be the same under both agreements and that the main difference between
the two agreements related to the certification and the making of decisions after
the election.
Hecht testified that after he, furnished the payroll list on March 2, he had
heard nothing from the Board until Spawr's appearance at his office on April 3.
He could not recall that Spawr had consulted and agreed with him previously
on the details of the election and the payroll list for eligibility, though he con-
ceded that some one contacted him about those matters. Hecht testified that
he was very busy at the time of Spawr's visit, that when he requested Spawr to
explain the difference in the two forms, she simply stated that under one form
the Company would know the results of the election and have it certified in
about a week, and that under the other one the matter would be handled by
Washington and might require a month or longer. Hecht thereupon stated that
he wanted to sign the cne under which the results would be gotten quickly, and
Spawr handed him one of the forms and he signed without reading it.
Hecht denied that Spawr inquired whether Lang bad advised him which form
to sign, denied that Spawr in fact had showed him the two forms or had given
him an opportunity to read them, and denied that Spawr had explained that
under one form the Regional Director would make the decisions on election
questions, while under the other the Board would.
Spawr testified that after Hecht signed the agreement she informed him that
he would receive a copy of the agreement after Sabella's approval, that she re-
quested Hecht to prepare the payroll list of eligible employees for the week ending
April 1, and that Hecht called in an office employee and directed preparation of
the list. Hecht, however, testified that he was unable to recall that anyone
with the Board had ever asked him for the payroll list of April 1, and testified
that he was possibly out of the city and that Wojcik may have submitted it.
The foregoing evidence requires the crediting of Spawr's testimony over
Hecht's where conflicts occurred , since her memory was far superior to Hecht's,
whose recollection of details was not only faulty but inconsistent with the docu-
mentary evidence.
Spawr thereafter returned to the office, obtained Rinaldi's signature to the
agreement, and delivered it to Arab Crocker, election clerk in the Memphis
office, for completion of the clerical work on the Board's records and for mailing
of approved copies to the parties.'
b. The election and subsequent events
The election was conducted by Spawr on April 6 , on the basis of the payroll
list for the period ending April 1 which was submitted by Respondent on the
morning of the election . Spawr testified that no preelection conference was
s Hecbt denied having received a copy of the election agreement . Crocker's testimony
establishes , however, that she placed envelopes containing conformed copies, properly
addressed to all parties, in the regular office mail box for mailing . Since Rinaldi testified
that he received the Union's copy , the inference is justified that if Respondent did not
receive its own , it was due to a failure in the mails.
VOLNEY FELT MILLS, INC. 1527
held relating to eligibility or other issues, because so far as she knew or was
informed no issues had been raised prior to the election . However, the Union
challenged five voters, John H. Bishop, Calvin H. Brown, Bill E. Wood, Franklin
B. Cox, and Claude Steelman, Jr.
The official observers for the Respondent and the Union joined with the
Regional Director's representatives in certifying the conduct of the election.
The official tally of ballots showed that of 47 eligible voters, 46 had cast ballots,
of which 23 were for the Union, 18 against it, and 5 were challenged. The
challenged ballots were, therefore, sufficient in number to affect the results of
the election.
On April 13 , the Union filed objections to the conduct of the election. On or
about May 10 , an investigation of the challenged ballots was conducted by
Joseph W. Bailey , a field examiner of the Memphis office , who interviewed wit-
nesses both at the plant and at their homes . Though Bailey did not notify or
consult with Lang, he did contact Hecht and arranged with him to conduct a
part of the investigation in Hecht's office . Bailey testified that Hecht asked to be
present during that part of the investigation and that he agreed, informing
Hecht that "he would be most helpful in getting all the information that should
be gotten as to the contentions of the parties ." Bailey thereupon interviewed
4 or 5 witnesses and prepared and took their affidavits . Before dismissing each
witness, Bailey inquired of Hecht whether he had any questions to ask, and
In at least one Instance Hecht questioned the witness further . Hecht made no
request or suggestion that Bailey call in additional witnesses.
On May 18, the Regional Director issued his report on challenged ballots and
a certification of representatives , but found it unnecessary to pass on the Union's
objections to Respondent 's conduct . The challenges were disposed of as follows :
Brown and Cox were found to be supervisory employees , and Steelman , Jr. (son
of Steelman , Sr.), John H. Bishop (brother of Superintendent Bishop ), and Bill
H. Wood ( son-in-law of Superintendent Bishop ) were found to be Ineligible "in
accordance with the Board 's policy to exclude close relatives of management
from the appropriate unit. " The challenges were therefore sustained , and the
Union was certified as the majority representative of the employees.
On May 28 , Respondent filed a lengthy motion for reconsideration and excep-
tions to the Regional Director 's report . The motion complained initially of
Sabella's failure to confer with Lang and to discuss with Lang the facts relating
to the challenged ballots prior to determining whether they should be counted.
The motion also asserted the claim that Sabella had promised to contact Lang
as soon as he started the investigation and that Respondent had assumed, since
Sabella had ignored Lang 's request to discuss the facts with him, that the dis-
pute was being resolved in favor of Respondent. The motion continued that
because of the nature of the grounds asserted therein , it would be "extremely
difficult" for the Regional Director and Sabella to reverse themselves , and that
accordingly the Board "should order a hearing and decide the issues in Wash-
ington ." Referring , however, to a suggestion of the Regional Director that the
motion should be filed with him as for reconsideration , the motion then set forth
specific exceptions to the merits of the rulings on each of the challenged ballots and
attached in support thereof affidavits of Superintendent Bishop and of certain
employees.
On June 8, John F. LeBus, Regional Director at New Orleans, wrote Lang
stating that a motion for reconsideration was "the correct procedure" and
"consistent with the agreement for Consent Election," but requested clarification
because the motion was subject to alternative interpretations that it was being
addressed to the Board on the one hand and, on the other, to both the Regional
Director and the Board.
1528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lang replied , on June 12, in part as follows :
The Motion for Reconsideration and Exceptions dated May 25th was filed
primarily to ask you, as Regional Director, to set aside your earlier findings
and, instead , overrule the challenges and objections. This we have done not
only because you suggested this procedure but because we think that you
should recognize the impropriety of the course of the . investigation and
erroneous evidence and case law cited to support the conclusions in the
Report.
At the same time we ask, by the exceptions, the Board to conduct its own
separate investigation so as to advise with you on this matter or take
independent action, as it might choose; we expressed the opinion that
independent action by the Board is warranted by the facts and circumstances.
We did not and could not, by the consent election agreement, waive our
right to due process or authorize the kind of procedure or character of findings
employed in the investigation and made in the Report.
... However, we are only interested in having the erroneous findings and
conclusions corrected. We, therefore, have asked you, by our motion, to
reconsider... .
On June 22, Louis R. Becker, Associate Executive Secretary of the Board,
wrote Lang referring to the filing with the Board of a copy of Lang's motion for
reconsideration, and advised Lang that the Board had taken no action because
of the statement in the motion that it was being filed with the Regional Director
as a motion for reconsideration. Becker also referred to advice received from
the Regional Director that he was currently examining the matter, and informed
Lang that his motion was prematurely filed with the Board "as the matter is
properly before the Regional Director."
LeBus entered an order on July 16 which granted Respondent's motion for
reconsideration and recalled his report pending reconsideration of the rulings
and findings. The order concluded :
ALL PARTIES ARE NOTIFIED that no final decision determinative
of the issues raised by the challenged ballots will be made prior to ten days
from the date hereof, during which time views, arguments, contentions and
evidence submitted by any party bearing upon any issue raised by the chal-
lenged ballots or objections to the conduct affecting the results of the election
will be received.
On July 23, Respondent, by Lang, filed the following response with the Regional
Director :
The Order of the Regional Director, dated July 16, 1951, advising that
he was allowing 10 days for all parties to submit their views, arguments,
contentions and evidence, makes no reference to and evidently does not
contemplate a hearing.
Volney Felt Mills, Inc., hereinafter referred to as the Company, has already
submitted in considerable detail evidence and arguments, supported by
affidavits ; whereas the Company has received nothing whatsoever, either
from the Union or from the Board, in answer to the Company's arguments
and evidence, in support of the Regional Director's original report or as an
original argument or evidence on behalf of the Union or of the position
taken by the Regional Director in his original report.
The Company feels that under all the circumstances of this case, it should
at least be served with proposed findings of fact and conclusions of law and
be given an adequate opportunity to reply thereto and to present and cross-
examine witnesses.
VOLNEY FELT MILLS, INC . 1529
On August 10 the Regional Director filed a lengthy supplemental report and
certification of representatives, which need not be set forth in full. After first
summarizing Lang's objections to the manner in which the investigation had been
handled, the report continued :
Neither Sabella nor the Regional Director have declined to accept from
Lang any facts, data, or opinions advanced by him. He had full oppor-
tunity from the time the ballots were challenged and the Objections were
filed to the date the original report was issued to submit anything he
wished. From his letter of April 9, 1951, it is clear that Lang knew the
basis for the challenges and his opinion that they should be counted as
valid ballots was thus made known, and was considered by the undersigned.
Sabella denied that he promised to "contact Lang as soon as the investi-
gations started," as claimed by Lang in his letter of April 21, 1951. In any
event, the Employer was not prejudiced by the investigation having started
by contacting the plant manager directly.
The report then referred to the manner in which the Regional Director had
handled with Lang previous similar cases, to the fact that the investigation in
the Volney case had involved the interviewing of witnesses at Respondent's
plant with the permission and under the observation of Hecht, and stated :
However, the employer's interest was in no way prejudiced in the obtain-
ing of the facts by the undersigned's agents or the presentation of informa-
tion by the Employer, by not having discussed with Lang the issues subse-
quent to the investigation.
The report then stated that the order of July 16 had been issued in order that
Lang "should without question be given full opportunity to present his views,
arguments, contentions and additional evidence," and referred to the fact that
Lang had submitted, pursuant thereto, only the response filed on July 23 in which
Lang had suggested that the Regional Director issue proposed findings of fact and
conclusions of law and cause a hearing to be held. That request was then for-
mally denied.
The report then proceeded to reconsideration on the merits of all of the issues
raised by the challenges, on the basis of all "the objections, views, arguments,
affidavits and contentions made in the Motion by the Employer and letters from
the Employer's counsel supplementing the said Motion." The Regional Director
adhered to his former ruling that Steelman, Jr., Bishop, and Wood were ineligible
to vote, but rested his conclusion on the finding that they had "a diversity of
interests" from the other production and maintenance employees because of
special privileges and special consideration on work assignments enjoyed by them
growing out of and due to their being relatives of "supervisory employees."
LeBus also adhered to his former ruling that Brown was a supervisor.
However, in the case of Franklin B. Cox, LeBus, being of the opinion that
because of the Board 's decision in Wood Manufacturing Company, 95 NLRB
633 (decided July 27, 1951), the case of Ohio Power Company v. N. L. R. B.,
176 F. 2d 385 (C. A. 6) (on which he had formerly relied) was not controlling,
rescinded his former ruling, but made no finding on Cox's eligibility because his
findings on the other challenged ballots made it unnecessary.
After disposing of other contentions, which are not here material, the
report made the following disposition of Lang's contention that by executing the
consent election agreement the Respondent "did not and could not" waive its
rights to due process :
Plant Manager Hecht , representing the Employer in the instant case,
was shown both standard forms of agreements for consent elections by the
1530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board agent and the distinction is that post-election decisions including
challenged ballots and objections, if any , are made by the Regional Director
when the parties execute an Agreement for Consent Election form whereas
in the other form, Stipulation for Certification Upon Consent Election, the
Board makes post-election decisions upon these subjects. The plant manager
chose to execute the Agreement for Consent Election form and did so on
April 3, 1951. Before executing the agreement , Manager Hecht consulted
by telephone with Lang on the proposition of the Employer consenting to
an election.
Both Lang and the Employer are fully aware that the Agreement executed
by the Employer provides in Section 6, "If the challenges are determinative
of the results of the election, the Regional Director shall investigate the
challenges and issue a report thereon. The method of investigation of
objections and challenges , including the question whether a hearing should
be held in connection therewith, shall be determined by the Regional Director,
whose decision shall be final and binding."
The undersigned finds that the Employer had not been denied due process
in this matter for any reason and certainly not by the denial of a hearing,
as this is unnecessary to the determination of the issues by the undersigned.
The report concluded with the certification of the Union.
On August 16, Respondent, by Lang, wrote Frank M. Kleiler, Executive Secre-
tary of the Board, referring to the earlier filing of Respondent 's motion of
reconsideration and exceptions to the original report, and to Becker's advice
that the motion was prematurely filed. The letter then outlined the subsequent
steps before the Regional Director, including the issuance of the supplemental
report, which it criticized in the following terms :
Said Supplemental Report did not discuss the evidence submitted by the
company, did not discuss the citations of authority [submitted by the
company], and, while stating that the company's motion, evidence, etc. had
been considered showed no indication of such consideration by a weighing
of the apparent conflict in the evidence (though the company is not aware
of what evidence contrary to the company's evidence that the Regional
Director may have in his possession). The Supplemental Report, as did
the original report of the Regional Director, shows a denial to the company
of that due process to which it is entitled by law under the federal Con-
stitution.
The Board was therefore asked to consider the matter as on appeal.
Continuing, the letter took exception to alleged erroneous statements in the
supplemental report, but deemed it important to reply to only one, as follows :
The Regional Director states, on page 6, that before executing the agree-
ment for the consent election, the manager of the company consulted by
telephone with company counsel on the proposition of consent to an elec-
tion. This infers that counsel thereupon advised the Company to sign the
particular form of agreement for consent election. Company counsel did
advise the company to consent to an election without the necessity of the
formal Board hearing it might have required under the statute, but company
counsel did not advise the company to execute the particular form of agree-
ment for consent election which was signed, and, in fact, the Regional
Director and his Memphis agents well knew that company counsel has in-
sisted in every other case-and these other cases are numerous-that his
clients, in agreeing to elections, sign only those forms which unmistakably
permitted appeals from rulings of the Regional Director... .
VOLNEY FELT MILLS, INC . 1531
On September 13, Becker wrote Lang that the Board had examined the ma-
terial which he had submitted and that it constituted " in a sense" an appeal
from the Regional Director's rulings 'on challenged ballots and rulings on ob-
jections, which the Regional Director had made pursuant to authority vested
in him by the consent election agreement. The letter continued :
It is a policy of the Board that it will not exercise its judgment when
requested to do so by parties to a Consent Election Agreement because of
dissatisfaction by any party with a Regional Director's judgment. When
the Board is satisfied that the Regional Director, acting pursuant to a Con-
sent Election Agreement, has not acted arbitrarily or capriciously, it will
not substitute its judgment on the merits for that of the Regional Director.
The basis of the Board's policy is the fact that the parties had entered
into an agreement, approved by the Regional Director, in which the parties
expressly waived the making of any decision by the Board, and agreed
further, that such decisions as may be required (other than that of fair-
ness on the part of the Regional Director) shall be made by the Regional
Director.
The Board has determined that because there has not been sufficient
demonstration in this matter that the Regional Director had acted capri-
ciously or arbitrarily it must refuse to interfere with the agreement for
Consent Election entered into by the parties.
For these reasons, the letter concluded, the Board had declined to interfere
with the Regional Director's determination of the matter.
In the meantime, the Union wrote Respondent on August 14 making a formal
request to bargain ; it renewed those requests on September 19, October 11, and
November 1. The first request was refused pending the determination of Re-
spondent's "appeal" to the Board, and the subsequent ones because Respondent
was seeking recourse to the courts.
3. Contentions and concluding findings
Respondent's contentions may be conveniently divided into two categories:
(1) Those advanced in the representation proceeding before the Regional Direc-
tor and the Board (and here renewed), for support of which Respondent relied
upon post-election events; and (2 ) those which it asserted for the first time at
the hearing in the present proceeding and in its brief to the Trial Examiner,
for support of which Respondent relied upon events preceding the election. The
case will be first considered as it was postured during the representation
proceeding.
Aside from Respondent's consistent assertions that the Regional Director's
rulings on the challenged ballots were erroneous on the merits, it is somewhat
difficult to follow the shifting bases on which Respondent predicated the remain-
der of its attack. In the early stages, after the issuance of the original report,
Respondent's complaint was not that LeBus had failed to hold a hearing, but
that Sabella had failed to confer with Lang and to discuss the facts relating
to the challenged ballots. Similarly, in Lang's clarifying letter of June 12, he
explained that his primary purpose was to request the Regional Director to
reconsider and to correct his erroneous findings and conclusions . Again, Lang
made no request that the Regional Director conduct a hearing, but suggested
that the matter was one which was appropriate for the Board's separate investi-
gation and possible independent action. And though the contention was stated
that Respondent had not, by the consent election agreement, waived its right
to due process, that claim was related to Respondent's position that it was
1532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
entitled to appeal and to request a formal hearing before the Board if it, should
be aggrieved by the Regional Director' s final action.
Yet, when the Regional Director granted Respondent's motion for reconsidera-
tion and recalled his report, Respondent deliberately rejected the further op-
portunity to present evidence and arguments, and contended for the first time
that the Regional Director should conduct a hearing, after first serving Respond-
ent with proposed findings and conclusions, so that Respondent might rebut them
by presenting, examining, and cross-examining witnesses . Forgotten then was
Respondent's complaint that Sabella had bypassed and had failed to confer with
Lang during the original investigation, and forgotten, too, was Respondent's
earlier stated "primary purpose" to request the Regional Director to review and
correct his erroneous findings.
Finally, Lang's letter of August 16 to the Board again requested the Board to
consider the matter as on appeal. Though contending that the Regional Direc-
tor's reports reflected a denial of due process, the claim was related to the
criticism that the supplemental report did not discuss the evidence and the cita-
tions of authority submitted by Respondent and did not indicate or reflect "a
weighing of the apparent conflict in the evidence."
Respondent's brief to the Trial Examiner accentuates the anomalous nature
of Respondent's contentions regarding due process. Thus, Respondent concedes
in repeated statements in its brief that the Regional Director was not necessarily
required to hold a hearing, but that Respondent's demands would have been
satisfied, alternatively, if the Regional Director had permitted the informal dis-
cussion of the issues and evidence which Lang had requested. The anomalies
inherent in Respondent's position, when viewed in the light of its response to
the order reopening the investigation were accentuated further by the statement
in its brief that, to get the facts, the Regional Director :
. , was compelled to go to both parties and to fully explore the issues
with them or give them an opportunity to do so. Whether or not this was
done by hearing, we repeat, is not the point : the point is that the Re-
spondent was not by any means allowed to show the real facts. [Emphasis
in original.]
The record therefore wholly refutes Respondent's contentions before the
Regional Director and the Board that it had been denied due process, particularly
since at that stage Respondent had raised no issue as to the presence in the consent
election agreement of the provision that the Regional Director's decision whether
a hearing should be held was to be final and binding. Indeed, whether the agree-
ment be read with or without that provision, it was equally effective to waive
the Respondent's right to a hearing on the challenged ballots. Compare Carlton
Wood Products Co.. 95 NLRB 589, with the amended decision at 97 NLRB
1182, and with The Standard Transformer Co., 97 NLRB 669. Respondent was,
therefore, not entitled to such a hearing as of right. Carlton Wood Products Co.,
97 NLRB 1182, supra.
Nor does the evidence establish that the Regional Director abused his discre-
tion or acted arbitrarily or capriciously in failing to hold a hearing under the
circumstances which have been summarized in section 2, above. Thus it appears
that a substantial portion of the original investigation had been made in the
presence of Respondent's plant manager, whose assistance in developing pertinent
information was invited by the field examiner ; that the Regional Director re-
ceived and fully considered all evidence, contentions, and arguments advanced
by Lang ; and that, granting Respondent's motion for reconsideration, he ac-
corded the parties a further opportunity of submitting evidence and arguments.
VOLNEY FELT MILLS, INC. 1533
Respondent did not, by its response to that order, suggest that the Regional
Director's proposed reinvestigation and reconsideration would be inadequate or
would not be undertaken in good faith (cf. Benton's Cloak & Suit Co., 97 NLRB
1327), but contended only that it was incumbent upon the Regional Director to
support his original report by findings and conclusions and that the Respondent
should then be accorded a formal hearing at which to sustain its position by pre-
senting and cross-examining witnesses (cf. ibid.). That response was not only
an inadequate excuse for its failure to comply with the order, but was incon-
sistent with its prior motion which had sought the very reconsideration which
the Regional Director had granted!
As to the merits of the Regional Director' s rulings on the challenged ballots,
It is also clearly established that nothing short of arbitrary or capricious action
by the Regional Director will invalidate his decision which the parties had
agreed to accept as final. N. L. R. B. v. General Armature and Mfg. Co., 192 F.
2d 316 (C. A. 3), decided November 7, 1951, enforcing 89 NLRB 654; Semi-Steel
Casting Co. v. N. L. R. B., 160 F. 2d 388 (C. A. 8), cert. den. 332 U. S. 758;
N. L. R. B. v. Capitol Greyhound Lines, 140 F. 2d 754 (C. A. 6), cert . den. 322
U. S. 763. It is, therefore, not enough for Respondent to show merely that the
rulings complained of were erroneous, for were it conceded that the Regional
Director committed an "error in judgment," his determination must stand
unless it be further found to be arbitrary or capricious Merrimac Hat Corp.,
85 NLRB 329, 331. Indeed, even though the Board might have reached a dif-
ferent conclusion on the merits, it deems the Regional Director's determination
to be final in consent elections of this character in the absence of fraud, mis-
conduct, or such gross mistakes as to imply bad faith. McMullen Leavens Co.,
83 NLRB 948, 955; General Armature & Mfg. Co., 89 NLRB 654, 659.
The latter principle has been many times applied by the courts in analogous
situations. See, for example, United States v. Moorman, 338 U. S. 456, 460, 461;
United States v. Gleason, 175 U. S. 588, 602; Kihlberg v. United States, 97 U. S.
398; and Chicago etc. R. Co. v. Price, 138 U. S. 185. Indeed, in its most recent
application of this principle, the Supreme Court imposed a further limitation on
attempts to overturn determinations of the present character, since it now equates
the phrase "such gross mistakes as imply bad faith" with fraud itself. Thus, in
United States v. Wunderlich, et al., 342 U. S. 98, 72 S. Ct. 154; decided November
26, 1951, the Court, after referring to the foregoing principle and to the line of
cases in which it was established, held that:
Despite the fact that other words such as "negligence," "incompetence,"
"capriciousness," and "arbitrary" have been used in the course of the
opinions, this Court has consistently upheld the finality of the department
head's decision unless it was founded on fraud, alleged and proved. So
fraud is in essence the exception. By fraud we mean conscious wrong-
doing, an intention to cheat or be dishonest. The decision of the depart-
ment head, absent fraudulent conduct, must stand under the plain meaning
of the contract.
... The finding of the Court of Claims was that the decision of the depart-
ment head was "arbitrary," "capricious," and "grossly erroneous." But these
words are not the equivalent of fraud, the exception which this Court has
heretofore laid down and to which it now adheres without qualification.
Furthermore, the response was in direct conflict with the position asserted in Re-
spondent's brief to the Trial Examiner that though the Regional Director was not neces-
sarily-required to bold a hearing, the Respondent was not by any means allowed to show
the real facts.
1534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
For the foregoing reasons it is unnecessary to consider the evidence which
Respondent submitted at the hearing to demonstrate that the Regional Director's
rulings on the challenges were erroneous. Though Respondent's evidence, con-
sidered alone 10 and without reference to countervailing evidence developed dur-
ing the Regional Director's investigation, might understandably require a dif-
ferent conclusion than that reached by the Regional Director, the Board will
nevertheless not substitute its judgment on the merits for that of the Regional
Director, absent the showing which is requisite under the foregoing authorities.
Attention is now turned to Respondent's contentions which were first raised
during the present proceeding and to the evidence which was adduced in relation
thereto. Respondent's central contention is that the Regional Director' s repre-
sentatives in the Memphis office deliberately misled and deceived Hecht into
signing the consent election agreement under which the Regional Director's
decision of election questions, including the question whether a hearing should
be held, was to be final and binding, and that Hecht did not knowingly or inten-
tionally agree to the waiver of a hearing. Since, as previously pointed out,
the agreement was equally effective to waive Respondent's right to a hearing
whether it be read with or without the provision in question (Carlton Wood
Products Co., supra; The Standard Transformer Co., supra), Respondent's
contentions might be summarily rejected without further consideration. How-
ever, because of the grave charges of misconduct which Respondent has levelled
against the Regional Director's representatives, Respondent's claims will be fully
explored.
Those claims are based on two counts which may be stated as follows: (1)
That after furnishing the payroll list of February 25 Respondent was entitled to
and (lid rely on the assumption that it had been accepted by the Union and the
Regional Office as establishing the eligibility to vote of all employees who were
listed thereon, since Respondent had not been informed that the Union objected
to any of said employees; and that Sabella knew, and yet deliberately withheld
the fact from Respondent, that the Union objected to and proposed to challenge
five of the employees listed by Respondent. (2) That Sabella and Spawr, de-
liberately bypassing and circumventing Lang, procured the execution of the
agreement by Hecht without benefit of counsel, and that Spawr also misled and
deceived Hecht by not explaining, among the differences in the two forms, that
the consent election agreement specifically authorized the Regional Director to
determine all election questions, including that of whether a hearing should
be held thereon.
(1) Save for Respondent's naked charge, the record is devoid either of evi-
dence or suggestion that Sabella knew, and deliberately withheld from Respond-
ent the fact that the Union questioned the eligibility of any of the employees on
the payroll list of February 25. Respondent was ultimately reduced, for support
of its claim, to the assertion that the foregoing facts must be inferred from the
fact that payroll lists are usually obtained for the purpose of checking eligibility
with the Union, the fact that preelection conferences are usually held for the
purpose of settling and removing by agreement as many eligibility issues as
possible, and the fact that no such conference was held in this case. So, Re-
spondent argues, those facts established that Sabella had checked the list with
"The General Counsel objected to Respondent 's evidence on the ground that under the
terms of the agreement the determination was one for the Regional Director and that
his rulings were not reviewable herein on the merits. Standing on that objection, the
General Counsel offered no evidence in rebuttal of Respondent's, which was received as
relevant to Respondent 's claim that the Regional Director had acted arbitrarily and
capriciously.
VOLNEY FELT MILLS, INC . 1535
the Union, had learned that the Union objected to eligibility of the five employees
in question , and had deliberately avoided the scheduling of a preelection con-
ference because he was aware that Respondent , in furnishing the list and in.
consenting to the election , had done so in reliance on the assumption that all
employees listed by It were eligible to vote, and that Respondent would not
have permitted the election to proceed if it had known otherwise . Aside from
the fact that this structure of inference on inference was supported by no evi-
dence, but rested only on febrile suspicion, its basic premises are in direct
conflict with the evidence.
First, Respondent's claims were related to the payroll list of February 25.
Neither Sabelia 's request of February 23 nor Respondent's reply of March 2,
with which it submitted the list, made any reference to the "eligibility" of the
employees listed thereon , nor did Respondent 's letter express or imply an as-
sumption on its part that all employees listed by it were to be permitted to
vote.' Second, at the time Respondent furnished the list, it had not consented
to an election, nor had it been requested to do so. Third, the list was not the
one used at the election for checking prospective voters. Instead, Hecht and
Spawr agreed on March 30 that the payroll list of April 1 would be used. Fourth,
at the time Hecht's signature was obtained to the consent election agreement,
the agreed payroll list had not been submitted by Respondent. And although
the names of the same five employees, later to be challenged by the Union, also
appeared on the April 1 list, there is no intimation in the evidence that Sabella
knew of their continued employment or of Respondent 's intention to list them
again.
The failure to schedule a preelection" conference was without significance
In view of Spawr's testimony that she was without knowledge or information
that there were eligibility issues to be disposed of and the further fact that
Respondent did not furnish the agreed payroll list until the morning of the
election . Furthermore , both the consent election agreement and the Board's
Regulations, with which Respondent's attorney (a fully experienced labor coun-
selor ) was thoroughly familiar , contained explicit recognition , through pro-
visions relating to challenges and the disposition thereof, that eligibility issues
will not necessarily be resolved at the preelection stages.
(2) Nor does the record support Respondent's claim that Sabella and Spawr
deliberately ignored and circumvented Lang and deliberately deceived Hecht
into signing the consent election agreement . Lang was admittedly engaged in
a lengthy unfair labor practice hearing in Arkansas , Spawr , pursuant to
Sabella 's direction , specifically inquired of Hecht whether he had been advised
by Lang as to which type of agreement Lang preferred. Though replying in the
negative, Hecht neither expressed or indicated any desire to seek Lang's advice,
but to the contrary invited Spawr to tell him the difference in the forms. Though
Spawr's explanation was not in complete detail, it contained a fair summary
of the essential differences ; and though Spawr made no specific reference to
the provision in the one form that the Regional Director was authorized to
u Though Respondent emphasized the claim in its brief that "the very basis upon which
Respondent sought and agreed to the election was that those employees whom it considered
eligible would, in fact, be permitted to vote, " there was no evidence that Respondent at
any time communicated such position either to Sabella or the Union or that either
acquiesced therein, expressly or by implication.
n The function of a preelection conference may be likened roughly to that of a pretrial
conference in a legal action , I. e., to agree on and to eliminate as far as possible issues
to be subsequently determined. It has never been suggested that the failure to hold such a
conference or the failure to agree on the issues to be resolved would automatically result
In elimination of the issues from the hearing.
1536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
decide whether to hold a hearing on election questions," she stated that he was
empowered to decide all election questions.
Other undisputed evidence establishes that Lang had in fact advised with
Hecht with specific reference to consenting to an election. Thus Lang in his
letter of August 16 to Kleiler admitted as true the Regional Director' s finding
in the supplemental report that Hecht had consulted by telephone with counsel
on the proposed consent to an election, and explained that :
Company counsel did advise the company to consent to an election without
the necessity of the formal Board hearing it might have required under the
statute, but company counsel did not advise the company to execute the
particular form of agreement for consent election which was signed.
(Emphasis supplied.)
The evidence in its entirety, including this final and telling refutation of
Respondent's contentions, establishes that Hecht was in no wise misted or
deceived by Spawr's explanation, but that to the contrary, he was acting upon and
following the advice which he had sought and obtained from his counsel. Though
Hecht was a busy executive, he was yet a literate and intelligent signatory.
Cf. Olin Industries, Inc., 97 NLRB 130. No reason therefore, appears why
Respondent should not be bound by the provisions of the election agreement to
which it was a party. Cf. Semi-Steel Casting Co. v. N. L. R. B., 160F 2d 288
(C. A. 8) ; N. L. R. B. v. A. J. Tower Co., 329 U. S. 324. As the Supreme Court
observed of a comparable waiver in United States V. Wunderlich , supra:
Respondents were not compelled or coerced into making the contract.
It was a voluntary undertaking on their part. As competent parties -alley
have contracted for the settlement of disputes in an arbitral manner. This,
as we have said in Moorman [United States v. Moorman, supra], Congress
has left them free to do."
It is therefore concluded and found on the basis of the entire evidence that
Respondent's rights of due process were in no manner infringed upon during
the course of the representation proceeding, and that Respondent has failed to
establish that the Regional Director's rulings were arbitrarily or capriciously
made. It is further concluded and found that the Regional Director's cer-
tification of the Union was valid.
It is, therefore, concluded and found that Respondent has, since August 16,
1951, refused to bargain with the Union as the certified representative of its
employees, and has thereby engaged in unfair labor practices proscribed by
Section 8 (a) (5) and (1).
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in con-
nection with the operations of 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 thereof.
19 As has been previously pointed out, the agreement was equally effective to waive
Respondent's right to a hearing if read without the provision.
14 Cf. Section 9 (c) (4) of the Act providing that "Nothing in this section shall be
construed to prohibit the waiving of hearings by stipulation for the purpose of a consent
election in conformity with regulations and rules of decision of the Board."
PRECISION' FABRICATORS, INC. 1537
V. THE REMEDY
It having been found that Respondent has engaged in certain unfair labor
practices it will be recommended that Respondent cease and desist therefrom
and that it take certain affirmative action designated to effectuate the policies
of the Act.
It having been found that from August 16, 1951 , and thereafter Respondent
refused to bargain collectively with the Union , it will be recommended that
Respondent , upon request , bargain collectively with said Union . Because of
the absence of evidence that Respondent has engaged in other unfair labor
practices and the absence of evidence that danger of other unfair labor practices
is to be anticipated from Respondent 's conduct, it will be recommended that
Respondent cease and desist from the commission of any other unfair labor
practices.
On the basis of the above findings of fact and upon the entire record in the
case , the undersigned makes the following :
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning of Section 2 (5)
of the Act.
2. All production and maintenance employees employed at Respondent's
Memphis, Tennessee, plant, excluding all office and clerical employees, watch-
men-guards , and all supervisors as defined in the Act, constitute a unit ap-
propriate for the purpose of collective bargaining within the meaning of Section
9 (b) of the Act.
3. At all times since August 10, 1951, the Union has been and now is the
exclusive representative of all the employees in the aforesaid unit for the
purposes of collective bargaining within the meaning of Section 9 (a) of the Act.
4. By failing and refusing at all times since August 16, 1951, to bargain
collectively with the Union as the exclusive representative of the employees in
the aforesaid unit, Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (5) and (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
6. Respondent has not engaged in discrimination or in interference, restraint,
and coercion , in violation of Section 8 (a) (3) and (1) of the Act, as alleged
in the complaint.
[Recommendations omitted from publication in this volume.]
PRECISION FABRICATORS , INC. and INTERNATIONAL BROTHERHOOD OF
PAPER MAKERS , A. F. OF L. Case No. 3-CA-463. December 30,
1952
Decision and Order
On August 1, 1952, Trial Examiner David London issued his Inter-
mediate Report in the above -entitled proceeding , finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices within the meaning of the Act, and recommending that it
cease and desist therefrom and take certain affirmative action, as set
101 NLRB No. 241.