White Knight Manufacturing Co.

National Labor Relations Board - Board Decisions

Mar 31, 1972

195 N.L.R.B. 1130 (N.L.R.B. 1972)

1130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
White Knight Manufacturing Company and Textile
Workers Union of America , AFL-CIO, CLC. Case
15-CA-4249
March 31, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND KENNEDY
Upon a charge filed on September 16, 1971, by Tex-
tile Workers Union of America, AFL-CIO, CLC,
herein called the Union, and duly served on White
Knight Manufacturing Company, herein called the Re-
spondent, the General Counsel of the National Labor
Relations Board, by the Regional Director for Region
15, issued a complaint on October 1, 1971, against
Respondent, alleging that Respondent had engaged in
and was engaging in unfair labor practices affecting
commerce within the meaning of Section 8(a)(5) and
(1) and Section 2(6) and (7) of the National Labor
Relations Act, as amended. Copies of the charge, com-
plaint, and notice of hearing before a Trial Examiner
were duly served on the parties to this proceeding.
With respect to the unfair labor practices, the com-
plaint alleges in substance that on August 12, 1971,
following a Board election in Case 15-RC-4589 the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate;' and that, commencing
on or about September 7, 1971, and at all times there-
after, Respondent has refused, and continues to date to
refuse, to bargain collectively with the Union as the
exclusive bargaining representative, although the
Union has requested and is requesting it to do so. On
October 12, 1971, Respondent filed its answer to the
complaint admitting in part, and denying in part, the
allegations in the complaint.
On October 20, 1971, counsel for the General Coun-
sel filed directly with the Baord a Motion for Summary
Judgment. Subsequently, on October 27, 1971, the
Board issued an order transferring the proceeding to
the Board and a Notice To Show Cause why the Gen-
eral Counsel's Motion for Summary Judgment should
not be granted. Respondent failed to file a response to
Notice To Show Cause.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
' Official notice is taken of the record in the representation proceeding,
Case 15-RC-4589, as the term "record" is defined in Secs . 102.68 and
102.69(f) of the Board's Rules and Regulations, Series 8 , as amended. See
LTV Electrosystems, Inc., 166 NLRB 938, enfd. 388 F.2d 683 (C.A. 4,
1968); Golden Age Beverage Co., 167 NLRB 151; Intertype Co. v. Penello,
269 F.Supp . 573 (D.C. Va., 1967); Follett Corp., 164 NLRB 378, enfd. 397
F.2d 91 (C.A. 7, 1968); Sec. 9(d) of the NLRA.
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
Upon the entire record in this proceeding , the Board
makes the following:
RULING ON THE MOTION FOR SUMMARY
JUDGMENT
In its Answer to the Complaint, the Respondent
denies the status of the Union as majority representa-
tive of its employees, contending that the conduct al-
leged in the objections to the election precluded a free
and fair vote and that the Board failed to afford it the
opportunity for a hearing thereon. The Respondent, in
effect , raises the same arguments which it presented to
the Board in its exceptions to the Regional Director's
Report on Objections. We find no merit in the Re-
spondent's contentions and arguments.
The election in Case 15-RC-4589, won by the
Union, was conducted pursuant to a Stipulation for
Certification Upon Consent Election. Following the
election, the Respondent filed timely objections alleg-
ing, in substance, that ( 1) union officials and others
threatened eligible employees who took positions
against the Union, (2) unknown persons damaged an
eligible employee's property because of his opposition
to the Union, (3) union officials made deliberate mis-
representations to eligible employees, and (4) such con-
duct destroyed the laboratory conditions necessary for
a fair and free election. In addition, the Respondent
requested a hearing, if there was a factual basis for
setting aside the election. After an investigation, the
Regional Director issued and served upon the parties
a Report on Objections in which he found that the
Respondent's objections raised no material or substan-
tial issues with respect to the election or conduct
thereof, and recommended that the objections be over-
ruled in their entirety and the Union certified.
The Respondent filed timely exceptions to the Re-
gional Director's report. Having considered the entire
record, including the Respondent's objections and ex-
ceptions and the Regional Director's report, the Board
was of the opinion that the Respondent's exceptions
raised no material or substantial issues of fact or law
which would warrant reversal of the Regional Direc-
tor's findings or recommendations or would require a
hearing. Accordingly, the Board certified the Union as
the exclusive bargaining representative of the em-
ployees in the stipulated appropriate unit. The Re-
spondent's answer in this unfair labor practice case
raises the same issues , contentions, and arguments
which it advanced in the underlying representation
case, and which the Board had previously considered
and denied.
195 NLRB No. 195
WHITE KNIGHT MFG.CO.
It is well settled that in the absence of newly discov-
ered or previously unavailable evidence or special cir-
cumstances a respondent in a proceeding alleging a
violation of Section 8(a)(5) is not entitled to relitigate
issues which were or could have been litigated in a prior
representation proceeding.'
All issues raised by the Respondent in this proceed-
ing were or could have been litigated in the prior repre-
sentation proceeding, and the Respondent does not
offer to adduce at a hearing any newly discovered or
previously unavailable evidence, nor does it allege that
any special circumstances exist herein which would
require the Board to reexamine the decision made in
the representation proceeding. We therefore find that
the Respondent has not raised any issue which is prop-
erly litigable in this unfair labor practice proceeding.
We shall, accordingly,, grant the Motion for Summary
Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Respondent, an Alabama corporation, is engaged in
the manufacture of hospital supplies at its plant on
Lakeview Road, Ozark, Alabama. During the past 12
months, a representative period, the Respondent in the
course and conduct of its business, purchased and re-
ceived goods and materials valued in excess of $50,000
directly from points outside the State of Alabama. Dur-
ing the same period, Respondent sold and shipped
goods valued in excess of $50,000 directly to points
outside the State of Alabama.
We find, on the basis of the foregoing, that Respond-
ent is, and has been at all times material herein, an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act, and that it will effectu-
ate the policies of the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
Textile Workers Union of America, AFL-CIO, CLC
is a labor organization within the meaning of Section
2(5) of the Act.
' See Pittsburgh Plate Glass Co. v. N.LR.B., 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c).
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
1131
The following employees of the Respondent consti-
tute a unit appropriate for collective-bargaining pur-
poses within the meaning of Section 9(b) of the Act:
All production and-maintenance employees in
the Respondent's Ozark, Alabama, plant, exclud-
ing office clerical employees, professional em-
ployees, plant guards and supervisors as defined in
the Act.
2. The certification
On May 5, 1971, a majority of the employees of
Respondent in said unit, in a secret ballot election con-
ducted under the supervision of the Regional Director
for Region 15, designated the Union as their represent-
ative for the purpose of collective bargaining with the
Respondent. The Union was certified as the collective-
bargaining representative of the employees in said unit
on August 12, 1971, and the Union continues to be
such exclusive representative within the meaning of
Section 9(a) of the Act.
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about August 23, 1971, and at all
times thereafter, the Union has requested the Respond-
ent to bargain collectively with it as the exclusive col-
lectively-bargaining representative of all employees in
the above-described unit. Commencing on or about
September 7, 1971, and continuing at all times there-
after to date, the Respondent has refused, and contin-
ues to refuse, to recognize and bargain with the Union
as the exclusive representative for collective bargaining
of all employees in said unit.
Accordingly, we find that the Respondent has, since
September 7, 1971, and at all times thereafter, refused
to bargain collectively with the Union as the exclusive
representative of the employees in the appropriate unit,
and that, by such refusal, Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with its operations de-
scribed in section I, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor
1132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
disputes burdening and obstructing commerce and the
free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the meaning
of Section 8(a)(5) and (1) of the Act, we shall order that
it cease and desist therefrom , and, upon request, bar-
gain collectively with the Union as the exclusive repre-
sentative of all employees in the appropriate unit, and,
if an understanding is reached, embody such under-
standing in a signed agreement.
In order to insure that the employees in the appropri-
ate unit will be accorded the services of their selected
bargaining agent for the period provided by law, we
shall construe the initial period of certification as begin-
ning on the date Respondent commences to bargain in
good faith with the Union as the recognized bargaining
representative in the appropriate unit . See Mar-Jac
Poultry Company, Inc., 136 NLRB 785; Commerce
Company d/b/a 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).
The Board, upon the basis of the foregoing facts and
the entire record, makes the following:
CONCLUSIONS OF LAW
1. White Knight Manufacturing Company is an em-
ployer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Textile Workers Union of America, AFL-CIO,
CLC is a labor organization within the meaning of
Section 2(5) of the Act.
3. All production and maintenance employees in the
Respondent's Ozark, Alabama, plant, excluding office
clerical employees, professional employees, plant
guards and supervisors as defined in the Act, constitute
a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act.
4. Since August 12, 1971, the above-named labor
organization has been and now is the certified and ex-
clusive representative of all employees in the aforesaid
appropriate unit for the purpose of collective bargain-
ing within the meaning of Section 9(a) of the Act.
5. By refusing on or about September 7, 1971, and at
all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive bar-
gaining representative of all the employees of Respond-
ent in the appropriate unit, Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(5) of the Act.
6. By the aforesaid refusal to bargain, Respondent
has interfered with , restrained, and coerced, and is in-
terfering with , restraining, and coercing , employees in
the exercise of the rights guaranteed to them in Section
7 of the Act, and thereby has engaged in and is engag-
ing in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board hereby orders that Respondent, White Knight
Manufacturing Company, its officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning rates
of pay, wages, hours, and other terms and conditions
of employment, with Textile Workers Union of
America, AFL-CIO, CLC as the exclusive bargaining
representative of its employees in the following appro-
priate unit:
All production and maintenance employees
in the Respondent's Ozark, Alabama, plant,
excluding office clerical employees, profes-
sional employees, plant guards and super-
visors as defined in the Act.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Upon request, bargain with the above-named la-
bor organization as the exclusive representative of all
employees in the aforesaid appropriate unit with re-
spect to rates of pay, wages, hours, and other terms and
conditions of employment, and, if an understanding is
reached, embody such understanding in a signed agree-
ment.
(b) Post at its Ozark, Alabama, plant, copies of the
attached notice marked "Appendix."' Copies of said
notice, on forms provided by the Regional Director for
Region 15, after being duly signed by Respondent's
representative, shall be posted by Respondent immedi-
ately upon receipt thereof, and be maintained by it for
60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
' In the event that this 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."
WHITE KNIGHT MFG.CO. 1133
(c) Notify the Regional Director for Region 15, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
CHAIRMAN MILLER, dissenting:
I would not grant summary judgment here. In the
underlying representation case this Board erred, in my
view, in failing to grant a hearing on factually contested
matters.
After the election, Respondent herein filed objections
alleging that employees had been threatened with
bodily harm because they were taking a position
against the Union. One of the objections also alleged
that an employee had been threatened by an anony-
mous telephone call in a manner suggesting that harm
would befall him in some other manner than physical
bodily harm, and that thereafter his car was defaced
with an unidentified sticky substance.
The Regional Director overruled the objections and
did not order a hearing on the ground that neither the
threats nor the damage to the automobile were shown
to have been attributable to agents of the Union, and
on the further ground that an insufficient number of
employees were affected by the alleged threats to gener-
ate an atmosphere of fear which would have impaired
the voters' right of free choice.
In my opinion, neither ground was sufficient to sup-
port a dismissal of the alleged objectionable conduct
without a hearing.
The courts have made clear that the "agency" test
will not do in these matters. As the Court of Appeals
for the First Circuit recently said in Cross Baking Com-
pany, Inc. v. N.L.R.B., 453 F.2d 1346:
Von Dreden was the principal in-plant union ad-
vocate. The Board regards it important that she
was not shown to be a paid union agent. The ques-
tion, however, is not the culpability of the union,
but whether an atmosphere of fear and coercion
was created in fact. See Home Town Foods, Inc. v.
N.L.R.B., 5 Cir., 1967, 379 F.2d 241, 244; Shore-
line Enterprises of America, Inc. v. N.L.R.B., 5
Cir., 1959, 262 F.2d 933, 942. It does not follow
that fear would be less effective if it had an unoffi-
cial origin. Indeed, we can visualize situations
where it might be more effective. If union officials
instigated violence, antiunion employees might
gain adherents to get rid, once and for all, of a
belligerent union by voting against it, whereas if
the atmosphere was the product of co-employees,
the rest of the employees might feel they were
going to be left with a disagreeable situation what-
ever should happen in the election, and hence had
best learn to live with it. In any event, we agree
with the earlier position of the Board that, regard-
less of whether coercive acts are shown to be at-
tributable to the union itself, "[t]he important fact
is that such conditions existed and that a free elec-
tion was thereby rendered impossible." Diamond
State Poultry Co., 1953, 107 NLRB 3, 6.
There should, therefore, have been a hearing to de-
termine the nature of the threats and the extent to
which they were communicated to other employees, so
that a determination could be made as to whether there
was a sufficient effect on the atmosphere in which the
election was conducted as to require that a second
election be run under more desirable circumstances.
The election here was decided by four votes. This
close margin makes it particularly imperative that we
determine the nature and extent of conduct which may,
at least, have tipped the scales by improper means.
While I am reluctant to make this determination
here, when it was not made in the representation case
itself, yet one of the functions of this unfair labor prac-
tice route to police our certifications is to safeguard due
process by giving us an opportunity to again review
whether our representation procedures have secured to
all parties the rights the law provides. Here I believe we
erred in not requiring a necessary hearing, and I would
act now to cure that defect.
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
concerning rates of pay, wages, hours, and other
terms and conditions of employment with Textile
Workers Union of America, AFL-CIO, CLC as
the exclusive representative of the employees in
the bargaining unit described below.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees in
the exercise of the rights guaranteed them by Sec-
tion 7 of the Act.
WE WILL, upon request, bargain with ,the
above-named Union, as the exclusive representa-
tive of all employees in the bargaining unit de-
scribed below, with respect to rates of pay, wages,
hours, and other terms and conditions of employ-
ment , and, if an understanding is reached, embody
such understanding in a signed agreement. The
bargaining unit is:
All production and maintenance em-
ployees in the Respondent's Ozark, Alabama,
plant, excluding office clerical employees,
professional employees, plant guards and
supervisors as defined in the Act.
1134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WHITE KNIGHT This notice must remain posted for 60 consecutive
MANUFACTURING days from the date of posting and must not be altered,
COMPANY defaced, or covered by any other material.
(Employer) Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Dated By Office, T6024 Federal Building (Loyola), 701 Loyola
(Representative) (Title) Avenue, New Orleans , Louisiana 70113, Telephone
This is an official notice and must not be defaced by
504-527-6361.
anyone.