American Twine & Fabric Corp.

National Labor Relations Board - Board Decisions

Dec 29, 1951

97 N.L.R.B. 868 (N.L.R.B. 1951)

868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
recommended that Respondent, upon reasonable request, make available to the
Board and its agents all records pertinent to an analysis of the amount due as
back pay.
The unfair labor practices found reveal on the part of the Respondent such a
fundamental antipathy to the objectives of the Act as to justify an inference that
the commission of other unfair labor practices may be anticipated. The preven-
tive purposes of the Act may be frustrated unless Respondent is required to take
some affirmative action to dispel the threat. It will be recommended, therefore,
that Respondent cease and desist from in any manner interfering with, restrain-
ing, or coercing its employees in the exercise of rights guaranteed by the Act.
. Upon the basis of the foregoing findings of fact and upon the entire record in the
case, I make the following :
CONCLUSIONS OF LAW
1. Amalgamated Clothing Workers of America, C. I. 0., is a labor organization
within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of the
employees named above, the Respondent has engaged and is engaging in unfair
labor practices within the meaning of Section S (a) (1) and (3) of the Act.
3. All production and maintenance employees including factory clericals, record
keepers, and other employees in the shipping department, warehouse employees,
warehousemen, stockroom clerks, record keepers in the cutting department, bundle
boys and mechanics in the sewing department, cleaners, janitors, and sweepers of
Mac Smith Garment Company, Inc., at its shirt manufacturing plant in Gulfport,
Mississippi, exclusive of foremen in the cutting department, foremen, assistant
foremen, floorladies, and head mechanics in the sewing department, foremen and
floorladies in the pressing department, floorladies in the boxing department, fore-
men in the shipping department, other supervisors, office-clerical employees,
watchmen, and guards, constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act.
4. Amalgamated Clothing Workers of America, C. I. 0., was on June 15, 1949,
and at all times since has been, the exclusive representative within the meaning of
Section 9 (a) of the Act of all employees in the aforesaid unit for the purposes of
collective bargaining.
5. By refusing to bargain collectively with the aforesaid Union as the exclusive
representative of the employees in the appropriate unit, the Respondent has
engaged and is engaging in unfair labor practices within the meaning of Section S
(a) (5) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 ( 6) and (7) of the Act.
[Recommended Order omitted from publication in this volume.]
AMERICAN TWINE & FABRIC CORPORATION and TEXTILE WORKERS
UNION OF AMERICA, CIO . UCMe No. 1-CA-912. December 29,1951
Decision and Order
On June 22, 1951, Trial Examiner Frederic B. Parkes, 2nd, issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
97 NLRB No. 127.
AMERICAN TWINE & FABRIC CORPORATION 869,
labor practices, and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter the Respondent.
filed exceptions to the Intermediate Report.
The Board 1 has reviewed the rulings made by the Trial Examiner-
at the hearing and finds that no prejudicial error was committed. The-
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report, the Respondent's exceptions, and the entire record in the-
case, and hereby adopts the Trial Examiner's findings of fact, but,,
for the reasons stated below, rejects his conclusion that the Respond-
ent violated the Act, and his recommendations which flow therefrom..
The sole violation alleged in the complaint in this case is a refusal"
by the Respondent on and after April 12, 1951, to bargain with the
charging Union. On the facts disclosed by the record and fully set.
forth in the Intermediate Report the Board would, under ordinary
circumstances, have found the violation as alleged, and issued the;
order recommended by the Trial Examiner.
In this case, however, the Union had been certified pursuant to a
petition which was filed and investigated by the Board at a time when
the CIO, with which the Union is affiliated, was not in compliance
withthe filing requirements of the Act, and when under the Supreme
Court's decision in the Highland Park case,2 the Board was without
authority to conduct such investigation. For the reasons stated in,
the Board's decision in The Advertiser case,3 we find that the statute,,
as recently amended, precludes our issuing an order based upon the
Respondent's "failure to honor" the certificate issued to the charging-
union, We are therefore compelled to dismiss the complaint herein.-
Order
Upon the entire record in this case, and pursuant to Section 10 (c),
of the National Labor Relations Act, as amended, the National Labor-
Relations Board hereby orders that the complaint herein against the
Respondent be, and it hereby is, dismissed.*
'Pursuant to the provisions of Section 3 (b) of the Act , the Board has delegated its,
powers in connection with this case to a three -member panel [ Chairman Herzog and
Members Reynolds and Styles].
2 N. L. R. B. v Highland Park Manufacturing Co., 341 U. S. 322.
B The Advertiser Company, Inc ., 9 NLRB 604. See also Reynolds & Manley Lumber
Company, Inc., 97 NLRB 188.
Intermediate Report
STATEMENT OF THE CASE
Upon a charge duly filed by Textile Workers Union of America, CIO, herein-
called the Union, the General Counsel of the National Labor Relations Board,'
1 The General Counsel and his representative at the hearing are referred to as the Gen-
eral Counsel . The National Labor Relations Board is herein called the Board.
986209-52-vol . 97-56
870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by the Regional Director of the First Region (Boston, Massachusetts) issued a
complaint dated May 8, 1951, against American Twine & Fabric Corporation,
herein called the Respondent, alleging that the Respondent had engaged in
and was engaging in unfair labor practices affecting commerce within the
meaning of Section 8 (a) (1) and (5) and Section 2 (6) and (7) of the National
Labor Relations Act, as amended, 61 Stat. 136, herein called the Act. Copies
of the charge, complaint, and notice of hearing were duly served upon the Re-
spondent and the Union.
With respect to the unfair labor practices, the complaint alleged in substance
that the Respondent had refused to bargain collectively with the Union as the
exclusive bargaining representative of the Respondent's employees in an ap-
propriate bargaining unit, although in an election conducted under the super-
vision of the Board's Regional Director a majority of the employees in the
bargaining unit had designated and selected the Union as their representative
for the purposes of collective bargaining.
The Respondent in its answer admitted certain allegations of the complaint,
denied that it had engaged in the alleged unfair labor practices, and set forth
certain affirmative defenses to the complaint's allegations, contending, in brief,
that the proceedings of the Board in Case No. 1-RC-1170, an earlier and ancil-
lary representation proceeding out of which the instant case arose, and the
Board's disposition of the Respondent's objections to the election and challenges
to votes cast, "are arbitrary, unreasonable, illegal and oppressive and have
denied the respondent due process of law and the equal protection of the laws
which is guaranteed to it under the Constitution of the United States."
Pursuant to notice, a hearing was held on May 28, 1951, at -Dover, New
Hampshire, before Frederic B. Parkes, 2nd, the undersigned Trial Examiner
duly designated by the Chief Trial Examiner. The General Counsel and the
Respondent were represented by counsel and the Union by an official repre-
sentative. Full opportunity to be heard, to examine and cross- examine wit-
nesses, and to introduce evidence bearing on the issues was afforded all parties.
At the hearing and in its answer, the Respondent urged that the complaint
herein "is defective in that it has not been signed by any proper authorities, as
appears by the copy filed with the respondent, and should be dismissed." The
complaint was not signed by any official of the Board. Since the Board' s Rules
and Regulations do not provide that the complaint should be signed and since,
in any event, the notice of hearing, to which the complaint was attached, was
signed by the Regional Director, the` undersigned finds the Respondent's con-
tentions in this regard to be without merit.
Upon the conclusion of the hearing, the undersigned advised the parties that
they might argue at that time before, and file briefs or proposed findings of fact
and conclusions of law, or both, within 7 days from the close of the hearing,
with the Trial Examiner. None of the parties argued orally and no briefs or
proposed findings of fact and conclusions of law have been filed with the
undersigned. °
Upon the entire record in the case, the undersigned makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
American Twine & Fabric Corporation, a New Hampshire corporation with
its principal office and place of business at Salmon Falls, New Hampshire, is
engaged in the manufacture, sale, and distribution of seat covers and related
products. During the past 12-month period, the Respondent purchased raw
AMERICAN TWINE & FABRIC CORPORATION 871
materials valued in excess of $100,000, of which more than 50 percent was
shipped to the Respondent's plant from points outside the State of New Hamp-
shire. During the same period, the Respondent manufactured finished prod-
ucts, such as seat covers and other paper fabric covers, valued in excess of
$100,000 and its sales were in excess of $100,000, of which more than 50 percent
was made and shipped to points outside the State of New Hampshire. The
Respondent concedes it is engaged in commerce within the meaning of the Act.
II. THE ORGANIZATION INVOLVED
Textile Workers Union of America, CIO, is a labor organization admitting
to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Sequence of events ; the representation proceeding
Upon a petition for certification filed by the Union in Case No. 1-RC-1170, on
August 17, 1949, and after hearing held thereon, the Board, on October 12, 1949,
issued a Decision and Direction of Election in which it directed an election
among the following employees of the Respondent whom the Board found con-
stituted a unit appropriate for the purposes of collective bargaining within
the meaning of Section 9 (b) of the Act: All production and maintenance em-
ployees, excluding executives , office and clerical employees , guards, watchmen,
professional employees , and all supervisors . On November 4, 1949, an election
by secret ballot was conducted under the supervision of the Regional Director
for the First Region. The tally of ballots showed that of the 142 ballots cast,
70 were east for the Union, 68 were cast against the Union, and 4 were chal-
lenged, and that, accordingly, the challenged ballots were sufficient in number
to affect the results of the election. On November 9, 1949, the Respondent filed
with the Board a "Protest of Election ," urging that the election be declared null
and void upon the following grounds : (1) The ballots challenged by the Re-
spondent at the election might affect the result and (2 ) since the Union "threat-
ened , coerced , intimidated , frightened , and influenced" employees eligible to
vote in the election, the results of the election did not represent the untrammelled
wishes of the employees.
Following an investigation, the Regional Director on December 23, 1949, issued
his "Consolidated Report on Objections and Challenged Ballots," recommending
that the Respondent's objections be overruled and that the challenges to the
ballots of Louise Pelletier, Olive Stackpole, and Emma Smith be overruled and
their ballots be opened and counted, and that the challenge to the ballot of Celina
Gagnon be sustained. The Respondent duly filed exceptions to the Regional
Director's report, excepting to those portions of the report which recommended
that the Respondent's objections be overruled and that the challenged ballots of
Pelletier and Stackpole be counted. On April 19, 1950, the Board directed that
a hearing be held on the issues raised by the Respondent's objections and excep-
tions and directed that the hearing officer make findings and recommendations
in respect to the issues.
On May 11, 19, and 25, 1950, a hearing was held before a hearing officer of
the Board. On July 10, 1950, the hearing officer issued his report and recom-
mendations, recommending that the objections to the election be overruled and
that the challenge to the ballot of Pelletier be overruled and the ballot be counted
but that the challenge to the ballot of Stackpole be sustained. In regard to the
ballots of Smith and Gagnon, the hearing officer recommended that the Regional
872 • DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Director 's recommendation be affirmed , in the absence of exceptions thereto-
Thereafter , the Respondent duly filed with the Board exceptions to the report
of the hearing officer , excepting to the recommendations that the objections to
the election be overruled and that the ballot of Pelletier be opened and counted.
On October 20, 1950 , the Board issued its Supplemental Decision and Certifica-
tion of Representatives in Case No. 1-RC-1170.' Therein , the Board affirmed
the rulings of the hearing officer at the hearing, adopted his recommendation
that the objections to the election be overruled , and in the absence of exceptions
to his recommendations as to the challenged ballots of Smith , Gagnon, and
Stackpole , adopted his recommendations in regard to them . However, the
Board overruled his recommendation in regard to the ballot of Pelletier and
sustained the challenge to her ballot . Accordingly , the challenges were sus-
tained as to the ballots of Pelletier , Stackpole , and Gagnon , but were overruled
as to Smith . Since Smith 's ballot could not affect the result of the election, the
Board did not order it to be counted . As a result of the determination of the
challenges , the tally of ballots revealed that a majority of the valid votes had
been cast for the Union and the Board , accordingly , certified the Union as the
statutory representative of the employees in the appropriate unit. -
About November 30, 1950 , the Respondent filed a complaint in the United
States District Court for the District of New Hampshire , requesting that the
Union be temporarily enjoined and restrained from the exercise of any rights:
acquired under the decision and certification by the Board and that the Court
review the decisions and entire proceedings of the Board in Case No. 1-RC-1170.
Thereafter , the Union filed a motion to dismiss the Respondent 's complaint.
Following a hearing on the motion to dismiss , the Judge of the United States
'District Court for the District of New Hampshire filed on March 21, 1951, his
,Rescript and Order , granting the Union 's motion to dismiss the Respondent's
complaint.
On April 3, 1951 , the Union sent the' Respondent the following letter :
This is to advise you that Textile Workers Union of America , CIO, is
hereby making formal demands upon the American Twine and Fabric
Corporation to sit down with the Textile Workers Union of America, CIO,
certified bargaining agent for all employees of your company and discuss
the matter of wages, hours and other conditions of work in accordance with
the collective bargaining authority vested in our union by the National
Labor Relations Board.
May I suggest that conferences on this matter begin Thursday , April 12,
1951 at 10 : 00 a. in. at the offices of your. company , or any other suitable
place in Dover , New Hampshire.
An early reply to this request will be appreciated.
In reply thereto , counsel for the Respondent sent the following letter, dated
April 12, 1951: _
Your letter of April 3rd addressed to American Twine, requesting a confer-
ence on April 12, 1951, to discuss the matter of'wages , hours and other condi-
tions of work in accordance with the collective bargaining authority vested in
your union by the National Labor Relations Board, has been referred to us
for attention as we are counsel for the American Twine & Fabric Corp.
Please be advised that the American Twine & Fabric Corp . does not recog-
nize any rights which you claim as certified bargaining agent for the produc-
tion employees of the American Twine & Fabric Corp, as a result of the
election held on November 4, 1949, on the ground that the election was unfair,
2 American Tivine & Fabric Corporation, 91 NLRB No. 168.
- AMERICAN TWINE -& FABRIC CORPORATION 873
Illegal and oppressive , and because of threats , coercion and intimidation
exercised by certain representatives of Textile Workers Union of America
upon certain employees of the company.
In accordance with the decision of the U. S. District Court, Judge Aloysius
J. Connor, under date of March 21, 1951 , "if and when a final order is issued
as authorized by the terms of Sub-section ( c) of Section 10, the right to
judicial review of the entire record thereupon accrues to the plaintiff as
provided in Sub-section (f)."
The American Twine and Fabric Corporation intends to avail itself of its
right to a judicial review of the entire record in accordance with the proce-
dure outlined in Judge Connor 's decision.
B. Contentions of the Respondent
In its answer , the Respondent contends that the election held on November 4,
1949 , should be set aside for the same reasons it relied upon in its initial protest to
the election . In addition , the Respondent makes the following contentions in its
answer in regard to the representation proceeding :
14. That the Findings of Fact and Rulings of Law made by the Hearing
Officer after the hearing on the issues presented by the respondent 's protest
of the election , which Findings and Rulings were approved by the National
Labor Relations Board , are not sustained by the evidence and by the law and
are arbitrary , unreasonable , illegal and oppressive.
15. That the Rulings made by the Hearing Officer during the progress of
the hearing with regard to the admission and exclusion of evidence, which
Rulings were objected to by the respondent , and subsequently approved by the
National Labor Relations Board, are arbitrary and illegal ; that the Ruling of
the Hearing Officer , which was approved by the National Labor Relations
Board , permitting unfair and prejudicial argument by counsel for the Union,
was arbitrary and contrary to law and should not have been sustained ; that
by reason of the aforesaid Rulings made during the conduct of the hearing by
the Hearing Officer , and subsequently approved by the National Labor Rela-
tions Board, the respondent was not given a fair hearing and has been
deprived of its rights in an arbitrary and illegal manner.
16. That the aforesaid Rulings, Report and Recommendations of the Hear-
ing Officer and the "Supplemental Decision and Certification of Representa-
tives" of the National Labor Relations Board based thereon, are arbitrary,
unreasonable , illegal and oppressive and have denied the respondent due
process of law and the equal protection of the laws which is guaranteed to it
under the Constitution of the United States.
C. Conclusions as to the appropriate unit , the majority status of the Union, and
the refusal to bargain
At the hearing in the instant proceeding , the Respondent offered no additional
evidence in support of its contentions as to the validity of the election . Accord-
ingly the Respondent 's entire case is based on the record made in the representa-
tion proceeding. Since the Respondent 's contentions and arguments in that
proceeding have been fully considered and disposed of by the Board , the under-
signed is bound by the Board 's rulings therein.
In view of the foregoing and upon the entire record, the undersigned finds that -
(1) all production and maintenance employees of the Respondent , excluding
executives , office and clerical employees, guards , watchmen , professional employ-
874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ees, and all supervisors, constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act ; ( 2) on and at all times
after October 20, 1950, the Union was and now is, by virtue of Section 9 (a) of the
Act, the exclusive representative of all employees in the aforesaid unit for the
purposes of collective bargaining with respect to rates of pay, wages, hours of
employment, and other conditions of employment; (3) on April 12, 1951, and at
all times thereafter, the Respondent refused to recognize or bargain with the
Union as the duly designated representative of its employees in an appropriate
unit in violation of Section 8 (a) (1) and (5) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in Section III, above, occurring in
connection with the operations of the 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 of commerce.
V. THE REMEDY
Since it has been found that the Respondent has engaged in unfair labor prac-
tices, it will be recommended that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act. Having found
that the Respondent has refused to bargain collectively with the Union as the
exclusive representative of its employees in an appropriate unit, the undersigned
will recommend that the Respondent upon request bargain collectively with the
Union.
Upon 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. Textile Workers Union of America, CIO, is a labor organization within the
meaning of Section 2 (5) of the Act.
2. All production and maintenance employees of the Respondent, excluding
executives, office and clerical employees, guards, watchmen, professional em-
ployees, and all supervisors, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9 (b) of the Act.
3. On October 20, 1950, Textile Workers Union of America, CIO, was, at all
times since has been, and now is, the representative of a majority of the Re-
spondent's employees in the appropriate unit described above for the purposes
of collective bargaining within the meaning of Section 9 (a) of the Act.
4. By refusing on April 12, 1951, and at all times thereafter, to bargain col-
lectively with Textile Workers Union of America, CIO, as the exclusive repre-
sentative of all its employees in the appropriate unit, the Respondent has en-
gaged in and is engaging in unfair labor practices within the meaning of Section
8 (a) (5) of the Act.
5. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the Respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section
8 (a) (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication in this vblume.]
MORRISON MILLING COMPANY
' Appendix A
NOTICE To ALL EMPLOYEES
875
Pursuant to the recommendations of a Trial Examiner 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:
WE WILL NOT engage in any acts in any manner interfering with the
efforts of TEXTILE WoRKERs UNION OF AMERICA, CIO, to negotiate for or
represent the employees in the bargaining unit described below.
WE WILL bargain collectively upon request with the above-named union
as the exclusive representative of all employees in the bargaining unit
described below with respect to wages, rates of pay, hours of employment
and other conditions of employment and if an understanding is reached,
embody such understanding in a signed agreement. The bargaining unit is:
All our production and maintenance employees, excluding executives,
office and clerical employees, guards, watchmen, professional employees,
and all supervisors.
AMERICAN TWINE & FABRIC CORPORATION,
Employer.
By ---------------------------------------------
(Representative) (Title)
Dated --------------------
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.
MORRISON- MILLING COMPANY and UNITED PACKINGHOUSE WORKERS OF
AMERICA, C. 1. 0. Case No. 16-CA-230. December 29, 1951
Decision and Order
On March 29, 1951, Trial Examiner Max Goldman issued his Inter-
mediate Report in the above-entitled proceeding finding that the Re-
spondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report.
The Board 1 has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions thereto and the entire record in the
case, and, for the reasons set forth below, hereby reverses the Trial
Examiner in his holding that the Respondent violated Section 8 (a)
(5) and (1) of the Act.
1 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers
in connection with this case to a three-member panel [ Chairman Herzog and Members
Reynolds and Murdock].
97 NLRB No. 133.