Craddock-Terry Shoe Corp.

National Labor Relations Board - Board Decisions

Apr 13, 1970

181 N.L.R.B. 1059 (N.L.R.B. 1970)

CRADDOCK-TERRY SHOE CORP. 1059
Craddock-Terry Shoe Corporation and Textile
Workers Union of America , AFL-CIO. Case
5-CA-4572
April 13, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On February 6, 1970, Trial Examiner Charles W.
Schneider issued his Decision in the above-entitled
proceeding, granting General Counsel's Motion for
Summary Judgment on the ground that there are no
unresolved issues requiring an evidential hearing and
finding that the Respondent had engaged in and was
engaging in certain unfair labor practices within the
meaning of the National Labor Relations Act, as
amended. The Trial Examiner recommended that
the Respondent cease and desist from such unfair
labor practices and take certain affirmative action,
as set forth in the attached Trial Examiner's
Decision. Thereafter, the Respondent filed
exceptions to the Trial Examiner's Decision and a
supporting brief.
Pursui nt to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has considered the Trial Examiner's
Decision, the exceptions and brief, and the entire
record in this case, and hereby adopts the findings,
conclusions, and recommendations of the Trial
Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that the Respondent , Craddock-Terry
Shoe Corporation , Farmville , Virginia, its officers,
agents , successors , and assigns , shall take the action
set forth in the Trial Examiner ' s Recommended
Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
The Issue
CHARLES SCHNEIDER, Trial Examiner: The case arises
on a Motion for Summary Judgment filed by Counsel for
the General Counsel upon an admitted refusal by the
Respondent to bargain with the certified charging Union,
the Respondent contending that it was improperly denied
a hearing on its objections to the election in the related
representation case, and that the certification of the Union
is therefore invalid.
The Representation Proceeding'
Upon a petition filed under Section 9(c) of the National
Labor Relations Act (29 U.S C.A 159(c)) on September
13, 1968 , by Textile Workers Union of America,
AFL-CIO, herein called the Union , the Union and
Craddock-Terry Shoe Corporation , the Respondent
herein , entered into a Stipulation for Certification Upon
Consent Election approved by the Regional Director of
Region 5 of the Board on October 11, 1968.
Pursuant to the stipulation an election in an
appropriate bargaining unit , described hereinafter, was
held on October 30, 1968 , under the supervision and
direction of the Regional Director to determine the
question of representation Of approximately 402 eligible
voters, 162 cast votes for the Union , 217 against, and 8
ballots were challenged.
On November 6, 1968, the Union filed objection to the
election, alleging, in sum , that because of certain asserted
conduct by the Respondent the employees were prevented
from casting free and unhampered ballots.
On February 5, 1969 , during the course of the Regional
Director ' s investigation of the Union ' s objection, the
Union and the Respondent entered into a Stipulation
which provided , among other things, that the election of
October 30 , 1968, be set aside, that the results be declared
null and void , and that a new election be held on March
19, 1969 . On February 12, 1969, the Regional Director of
Region 5 of the Board approved the stipulation
Thereafter , on March 19 , 1969, a second election by
secret ballot was conducted under the supervision and
direction of the Regional Director . Of approximately 386
eligible voters, 188 cast ballots for the Union , 178 cast
ballots against , I ballot was challenged, and 3 were void.
The challenged ballot was not sufficient to affect the
results of the election.
On March 26, 1969, Respondent filed Objections to
Conduct of Election and Conduct Affecting Results of
Election , alleging, in sum , that the Union coerced and
intimidated employees prior to the election by the use of
force , threats of reprisal , and false and misleading
statements , electioneered during the balloting , and violated
an understanding that a settlement agreement executed
prior to the second election would not be publicized until
after the election
In conclusion , Respondent requested that the results of
the election be set aside and a new election ordered; or, if
necessary, a hearing should be held to determine the
matter.
On June 2, 1969, the Regional Director issued a Report
on Objections . In the report the Regional Director stated
that an investigation of the Respondent ' s objections had
been conducted . He reviewed the evidence submitted and
secured during the investigation , found the objections to
be unsubstantiated, and recommended that they be
'Administrative or official notice is taken of the record in the
representation proceeding, Case 5-RC-6578, as the term "record" is
defined in Section 102 68 and 102 69(c) of the Board 's rules (Rules and
Regulations and Statements of Procedure, National Labor Relations
Board , Series 8 as amended ) See LTV Electrosystems, Inc , 166 NLRB
No 81, enfd 388 F.2d 683 (CA 4), Golden Age Beverage Co , 167
NLRB No 24 enfd 415 F 2d 26 (C A 5), /ntertype Co v Penello, 269
F Supp 573 (D C Va 1967); Intertype Co v N L R B. 401 F 2d 41
(C A 4); Follett Corp. 164 NLRB No 47, enfd 397 F 2d 91 (C A 7),
Section 9(d) of the National Labor Relations Act
181 NLRB No. 171
1060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
overruled and that the Union be certified as the
collective-bargaining representative of the employees in
the appropriate unit.
Thereafter, on June 11, 1969, Respondent filed with the
Board in Washington, D. C., Employer's Exceptions to
Regional Director's Report, in which, after discussion of
the issues and the report the Respondent requested that
the election be set aside or, in the alternative, that a
hearing be held to resolve the issues raised by the
Respondent's objections to the election.
On August 12, 1969, the Board issued a Decision and
Certification of Representative in which the Board
adopted the Regional Director's Report on Objections,
and certified the Union as the bargaining representative.'
The Unfair Labor Practice Case
On November 21, 1969, the Union filed the instant
unfair labor practice charge alleging that since the
certification the Respondent had refused to bargain with
the Union.
On December 9, 1969, the Regional Director issued a
Complaint and Notice of Hearing, alleging that since the
certification the Respondent had committed unfair labor
practices in violation of Section 8(a)(1) and (5) of the Act
by refusing to bargain collectively with the Union as
bargaining representative, though requested to do so.
On December 18, 1969, the Respondent filed its
Answer to the Complaint in which it admitted some of the
material allegations of the Complaint but denied the
commission of unfair labor practices The Answer
admitted that the Union had been certified by the Board
and that the Respondent refuses to bargain with it. The
defenses asserted by the Respondent in the Answer are
that the election was invalid for the reasons stated in the
Respondent's objections, that the Respondent is entitled to
a hearing thereon in this proceeding, and that at such a
hearing the Respondent would submit evidence, some
previously unavailable. In addition, the Answer averred
that the Respondent had been denied due process by (1)
the Regional Director's imposition of unfair time
limitations for the presentation of affidavits supporting the
Respondent's objections, (2) failure to furnish the
Respondent with copies of certain affidavits taken by
Board agents in the investigation of the objections, and (3)
failure to afford the Respondent opportunity to produce
counter- affidavits.
On January 7, 1970, Counsel for the General Counsel
filed a Motion to the Trial Examiner for Summary
Judgment on the ground, in substance, that all material
issues had been decided in the prior representation case,
or were admitted, and that the Respondent did not allege
that it has relevant new evidence. On the same day, I
issued an Order to Show Cause on General Counsel's
Motion for Summary Judgment, returnable January 21,
1970. On January 20, 1970, the Respondent filed a
Response to Motion for Summary Judgment and to the
Order to Show Cause No responses have been received
from any other party.
'With respect to the Respondent 's objections to the election the Board
said
The Board has considered the objections, the Regional Director's
Report , the Employer 's exceptions and brief, and the entire record in
this case , and hereby adopts the Regional Director's findings,
conclusions and recommendations '
'The Employer 's exceptions , in our opinion , raise no material or
substantial issues of fact or law which would warrant reversal of the
Regional Director 's findings and recommendations.
Ruling on Motion for Summary Judgment
As has been seen, the Respondent's position, stated in
its Answer and amplified in its Response to the Order to
Show Cause, is that its objections to the election and its
request for hearing thereon were improperly overruled or
denied, that the Union consequently has not been legally
designated by the employees as their collective-bargaining
representative, that the Respondent was denied due
process in the representation case, and that the
certification of the Union as such representative is
therefore invalid. More specifically the Respondent
contends that the Regional Director did not consider
material portions of the Respondent's evidence, did not
give Respondent sufficient time to produce such evidence,
and further that he acted upon evidence ex parte and
improperly made credibility findings The Respondent also
states that the issues raised by its objections were not fully
litigated in the representation case. Finally it is asserted
that the Respondent has previously unavailable evidence
or evidence which became material by reason of the
Regional Director's inadequate and ex parte investigation.
I have concluded that the Respondent's contentions
may not be sustained by me.
It is established Board policy, in the absence of newly
discovered or previously unavailable evidence or special
circumstances, not to permit litigation before a trial
examiner in an unfair labor practice case of issues which
were or could have been litigated in a prior related
representation proceeding.' This policy is applicable even
though no formal hearing on objections has been provided
by the Board. Such a hearing is not a matter of right
unless substantial and material issues are raised.4 The
Board has determined that the Respondent's objections
presented no such issues here.
It is true that the Respondent contends that the issues
which it raises in its Answer and in its response to the
Order to Show Cause were not litigated in the
representation case. However, upon this record I do not
find that contention to be sustained. Those issues,
specifically including the merit of the Respondent's
objections, the necessity for hearing thereon, and the
asserted procedural unfairness, were submitted by the
Respondent for determination in the representation case,
either to the Regional Director in the form of the
objections and supporting material, or to the Board in
exceptions to the Regional Director's Report on
Objections, or both Both the Regional Director and the
Board found no substantial or material issues. It is
therefore apparent that the relevant matters were litigated
and considered in the representation case within the
meaning of the Board's procedures. That the Respondent
disagrees with the Regional Director's and the Board's
conclusions as to the substantiality of the Respondent's
objections does not authorize the trial examiner to reverse
'Krieger-Ragsdale & Co, Inc, 159 NLRB 490, enfd 379 172d 517
(C A. 7), cert . denied 389 U S 1041; Howard Johnson Company, 164
NLRB No 121, Metropolitan Life Insurance Company, 163 NLRB No
71 See Pittsburgh Plate Glass Co v N L R B, 313 U S 146, 162; NLRB
Rules and Regulations , Section 102 67(f) and 102.69(c)
'O K Van and Storage, Inc,127 NLRB 1537, enfd 297 F 2d 74 (C A 5)-.
See Air Control Window Products, Inc, 335 F 2d 245, 249 (C A 5)
"If there is nothing to hear, then a hearing is a senseless and useless
formality " See also N L R B v Bata Shoe Co , 377 F 2d 821, 826 (C A 4)
there is no requirement, constitutional or otherwise , that there be a
hearing in the absence of substantial and material issues crucial to
determination of whether NLRB election results are to be accepted for
purposes of certification "
CRADDOCK-TERRY SHOE CORP.
the Board. In any event, actual litigation of an issue in a
representation case is not required in order to preclude
litigation of that matter in a subsequent related unfair
labor practice proceeding. It is enough that the issue could
have been raised in the representation case. See Section
102.67(f) of the Board's rules. All of the Respondent's
present contentions were or could have been raised before
the Board in the Respondent's exceptions. The
Respondent does not assert that the Regional Director
declined to accept any evidence offered by the Respondent
during the administrative investigation, or refused any
request by the Respondent for additional time. No
adequate showing is made that any substantial material
issue or evidence has arisen or been discovered since the
issuance of the Board's Decision and Certification.'
In sum, then, it is found that the Board has concluded
on the basis of the record that the Respondent's objections
did not raise material and substantial issues requiring
hearing, that all issues raised by the objections have been
litigated and resolved in the representation case, that the
Board reviewed the evidence, the record, and the findings
and recommendations of the Regional Director, and that
such action complied with the Act. At this stage of the
proceeding these determinations by the Board are the law
of the case. No substantial previously unavailable evidence
being offered, it follows that the Union has been properly
certified as the representative of the employees, that the
Respondent has raised no unresolved matters requiring an
evidential hearing, and that the Respondent's refusal to
bargain with the Union is a violation of the Act. The
General Counsel's Motion for Summary Judgment is
therefore appropriate and is granted.
Upon the basis of the record before me I make the
following further.
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Respondent is, and at all times material herein has been
a corporation duly organized under and existing by virtue
of the laws of the Commonwealth of Virginia, having
several places of business in the Commonwealth of
Virginia, including one in Farmville, Virginia, where it is
engaged in the manufacture of shoes.
Respondent, in the course and conduct of its business
operations during the preceding 12 months, a
representative period, sold and distributed to points
outside the Commonwealth of Virginia products having a
gross value in excess of $50,000 During the same period
Respondent received raw materials valued in excess of
$50,000 which were transported to its places of business
directly from points and places outside the
Commonwealth of Virginia
Respondent is, and at all times material herein has
been, engaged in commerce within the meaning of Section
'The Respondent states ( Response p 4) that it has evidence which was
either unavailable to it on April 4 , 1969, or which became relevant because
of the Regional Director 's "inadequate and ex parte method of
investigation and disposition of the [Respondent ' s] objections " I do not
find this evidence either substantial or previously undiscovered Though the
evidence may not have been available on April 4, 1969 , or its significance
not ascertained before issuance of the Regional Director 's Report on
Objections , there is no assertion that it remained unavailable during all the
time the representation case was pending before the Board Such a showing
is necessary in order that the withholding of evidence and the protraction
of litigation not be encouraged in representation cases, in which prompt
disposition is particularly important
2, subsection (6), of the Act.
11. THE LABOR ORGANIZATION INVOLVED
1061
Textile Workers Union of America , AFL-CIO is a
labor organization within the meaning of Section 2,
subsection (5) of the Act.
111. THE UNFAIR LABOR PRACTICES
The following employees of Respondent constitute a
unit appropriate for purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
All production and maintenance employees employed
by Respondent at its Farmville, Virginia, plant
excluding office clerical employees, professional
employees, time study employees, guards and
supervisors as defined in the Act.
On August 12, 1969, the Board certified the Union as
the exclusive collective-bargaining representative of the
employees in the appropriate unit for the purposes of
collective bargaining, and by virtue of Section 9(a) of the
Act the Union is the exclusive representative of all the
employees in the said unit with respect to rates of pay,
wages, hours of employment and other terms and
conditions of employment.
At all times since on or about October 14, 1969, though
requested by the Union to bargain, the Respondent has
refused to bargain collectively with the Union as such
representative
By thus refusing to bargain collectively Respondent has
engaged in unfair labor practices in violation of Section
8(a)(5) of the Act and has interfered with, restrained, and
coerced its employees in violation of Section 8(a)(1) of the
Act
The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings and conclusions, pursuant
to Section 10(c) of the Act, I recommend that the Board
issue the following
ORDER
A. For the purpose of determining the duration of the
certification, the initial year of certification shall be
deemed to begin on the date the Respondent commences
to bargain in good faith with the Union as the recognized
exclusive bargaining representative in the appropriate
6unit
B. Craddock-Terry Shoe Corporation , its officers,
agents, successors , and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Textile
Workers Union of America , AFL-CIO, as the exclusive
collective-bargaining representative of the employees in
the following appropriate bargaining unit:
All production and maintenance employees employed
by Respondent at its Farmville , Virginia, plant
excluding office clerical employees , professional
employees, time study employees , guards and
'The purpose of this provision is to insure that the employees in the
appropriate unit will be accorded the services of their selected bargaining
agent for the period provided by law . See Mar-Jac Poultry Co , 136
NLRB 785; Commerce Co , d/b/ a Lamar Hotel, 140 NLRB 226, 229, 328
F.2d 600 (C.A. 5), cert . denied 379 U S 817, Burnett Construction Co
149 NLRB 1419, 1421, 350 F 2d 57 (C.A 10)
1062 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
supervisors as defined in the Act.
(b) Interfering with the efforts of said Union to
negotiate for or represent employees as such exclusive
collective-bargaining representative.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Upon request bargain collectively with Textile
Workers Union of America, AFL-CIO as the exclusive
representative of all employees in the appropriate unit
with respect to rates of pay, wage, hours of employment,
and other terms and conditions of employment, and
embody in a signed agreement any understanding reached.
(b) Post at its place of business in Farmville, Virginia,
copies of the attached notice marked "Appendix "' Copies
of said notice on forms provided by the Regional Director
for Region 5, shall, after being duly signed by an
authorized representative of the Respondent, be posted by
the Respondent immediately upon receipt thereof and be
maintained by the Respondent for a period of 60
consecutive days thereafter in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered,
defaced, or covered by other material.
(c) Notify the Regional Director for Region 5, in
writing, within 20 days from receipt of this recommended
Order what steps the Respondent has taken to comply
herewith "
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the National Labor Relations
Board an agency of the United States Government
WE WILL NOT refuse to bargain collectively with
Textile Workers Union of America, AFL-CIO, as the
exclusive collective-bargaining representative of all the
employees in the following appropriate unit:
All production and maintenance employees employed
by us at our Farmville, Virginia, plant, excluding office
clerical employees, professional employees, time study
employees, guards and supervisors as defined in the
Act
WE WILL NOT interfere with the efforts of the Union
to negotiate for or represent employees as exclusive
collective- bargaining representative.
WE WILL bargain collectively with the Union as the
exclusive collective-bargaining representative of the
employees in the appropriate unit, and if an
understanding is reached we will sign a contract with
the Union.
CRADDOCK-TERRY SHOE
CORPORATION
Dated By
'In the event no exceptions are filed as provided by Section 102.46 of the
Rules and Regulations of the National Labor Relations Board, the
findings , conclusions , recommendations , and recommended Order herein
shall, as provided in Section 102.48 of the Rules and Regulations, be
adopted by the Board and become its findings, conclusions, and order, and
all objections thereto shall be deemed waived for all purposes In the event
that the Board 's order is enforced by a judgment of a United States Court
of Appeals, the words in the notice reading "Posted by order of the
National Labor Relations Board" shall be changed to read "Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing
an Order of the National Labor Relations Board "
'In the event these recommendations are adopted by the Board, this
provision shall be modified to read "Notify the Regional Director for
Region 5, in writing , within 10 days from receipt of this Order what steps
the Respondent has taken to comply herewith "
(Representative ) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance
with its provisions, may be directed to the Board's Office,
1019 Federal Building, Charles Center, Baltimore,
Maryland 21201, Telephone 301-962-2822.