Gittlin Charlotte Bag Co.

National Labor Relations Board - Board Decisions

Aug 20, 1951

95 N.L.R.B. 1159 (N.L.R.B. 1951)

GITTLIN CHARLOTTE BAG COMPANY 1159
GITTLIN BAG COMPANY, D/B/A GITTLIN CHARLOTTEI BAG COMPANY and
AMERICAN FEDERATION OF LABOR. Case No. 34-CA-121. August
201 1951
Decision and Order
On May 15, 1951, Trial Examiner Lloyd Buchanan, 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 be ordered to 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 and a
supporting brief, and the charging Union filed a brief supporting the
Intermediate Report.
The' oard 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 In-
termediate Report, the exceptions and briefs, and the entire record
in the case and hereby adopts the findings,2 conclusions, and recom-
mendations of the Trial Examiner, with the following additions and
modifications.
We agree with the Trial Examiner's conclusion that the Respondent
refused to bargain with the Union in violation of Section 8 (a) (5)
and 8 (a) (1) of the Act on andafterJuly 11; 1950
For a substantial period.of time, Jacobs, the union negotiator, had
been engaged in attempts to bargain with Cohen, the Respondent's
attorney. Cohen had plenary authority to negotiate, on behalf of
the Respondelit, with the Union. Negotiations were prolonged for
a period of more than a year and a half. Finally on June 8, 1950, at
the last-meeting between the parties, Cohen assured Jacobs that if
the latter made certain concessions in the contract, "that that was the
only thing between them," and declared that in all other respects the
agreement was definite and that his client, who had not personally
appeared at any of the negotiations, would sign it. Jacobs acquiesced
as to the proposed concessions and the meeting adjourned with the
understanding that an agreement had been reached and that nothing
remained to be done except formal execution of a contract. Thereafter
Jacobs was unable to reach Cohen. Finally, in a letter -dated June 28,_
1 Pursuant to the provisions of Section 3 (b) of the Act , the Board has delegated its
powers in respect to this case to a three -member panel [ Members Houston, Reynolds,
and Styles].
The Intermediate Report at one point inadvertently refers to 1950 as the year in
which the election in Case No. 34-RC-112 was held and the Union was certified. This
should be 1949.
95 NLRB No. 163.
1160 DECISIONS "OF NATIONAL LABOR RELATIONS BOARD
1950, Jacobs'advised Cohen of his intention to file unfair labor prac-
tice ch'arges. Cohen then telephoned to Jacobs, requesting him-to defer
such action and promising to get in touch with Gittlin in order to,
have the latter sign the agreement. -
On July 11, Jacobs was informed by Cohen that Gittlin had written
to the` effect:: that he wanted to see if a more' equitable arrangement
could be worked out and wanted to confer further with Cohen. The.
letter made no reference to any particular clauses' that were objec-
tionable, and offered no specific counterproposals. Jacobs then filed
the charge herein. Some 4 months later a. letter was written to Jacobs
on behalf of the Respondent which questioned the Union's majority
status and suggested a payroll membership card check. The Re-
spondent simultaneously filed an RM petition (34-RM-16) which.
was administratively dismissed because of the pendency of the charge.
Thus the Respondent extended plenary bargaining authority to his-
attorney for more than a year and a half, only to withdraw such au-
thority and disavow the agreement when an accord was finally
reached, without any adequate explanation, counterproposals, or even
suggestion of the areas in which real disagreement might exist. We
are persuaded that at that point the Respondent' demonstrated an in-'
tent to forestall bargaining and avoid coming to any agreement, and
thereby refused to bargain in violation of the Act.
Nor does it avail the Respondent that it questioned the Union's ma-
jority and filed an RM petition about 4 months after its bad faith
bargaining had resulted in a cessation of negotiations and after unfair
labor practice charges had been filed. Raising the issue of the Union's
majority under such circumstances cannot be regarded as having been
done in good faith, and, in any event, has no bearing on the Respond-
ent's earlier conduct. Moreover, any loss of the Union's majority
which may have occurred after July 11, 1950, must be attributed to
the Respondent's unlawful. refusal to bargain and.is no barrier to
an order to bargain based on that refusal .3
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, Gittlin Bag Com-
pany d/b/a Gittlin Charlotte Bag Company, Charlotte, North Caro-
lina, its officers, agents, successors, and assigns, shall :
L Franks Brothers Company v. N. L. R. B., 321 U. S. 702. However, we see no justifica-
tion in this case for departing from our usual remedial order in refusal to bargain cases
and ordering , as the Union contends , that the Respondent reimburse the employees for any
economic losses they may have sustained by not having obtained a collective bargaining
agreement . See Weyerhaeuser Timber Company , 87 NLRB 672. '
GITTLIN CHARLOTTE -BAG COMPANY 1161
1. 'Cease and desist: from
(a) Refusing to bargain collectively with American Federation of
Labor as the exclusive representative of all, its employees in the ap-
propriate unit with respect to rates of pay, wages, hours of employ-
ment; or other conditions of employment.
(b) In any manner interfer-ing with the efforts of American Fed-
eration of Labor to bargain, collectively with the Respondent.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with American Federation
of Labor as the exclusive representative of the employees in the appro-
priate unit, and embody in a signed agreement any understanding
reached.
(b) Post at its plant in Charlotte, North Carolina, copies of the
notice attached hereto marked "Appendix." 4 Copies of said notice,
to be furnished by the Regional Director for the Fifth Region, shall,
after being duly signed by the.. Respondent's representative, be posted
by the Respondent immediately upon receipt thereof, and -be main-
tained by it for sixty,(60) consecutive days thereafter, in conspicuous
places, including all places where notices to its employees, are cus-
tomarily posted. Reasonable steps shall be taken by the Respondents
to insure that said notices are not altered, defaced, or covered by any
other material.
(c) Notify the Regional Director for the Fifth Region, in writing,
within ten (10) days from the date of- this Order, what steps it has
taken to comply herewith.
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, as amended, we hereby notify our employees that :
WE WILL NOT in any manner interfere with the efforts of the
AMERICAN FEDERATION OF LABOR to bargain collectively on behalf
of our employees.
WE WILL bargain upon request with AMERICAN FEDERATION OF
LABOR as the exclusive representative of all employees in the bar-
gaining unit described herein with respect to rates of pay, hours, of
employment, or other conditions of employment, and embody in a
41n the event that this Order is "enforced by a decree of a United States Court of Appeals,
there shall be. Inserted before the words, "A Decision and Order" the words , "A Decree
of the United States Court of Appeals Enforcing."
1162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
signed agreement any understanding reached. The bargaining
unit is :
All production and maintenance employees in our plant in
Charlotte; North Carolina, excluding office-workers,- fore-
men, and all other supervisors.
GITTLlN BAG COMPANY, D/B/A,
GITTLIN CHARLOTTE BAG COMPANY,
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.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon a charge duly filed on July 19, 1950, by American Federation of Labor,
herein called the Union, the General Counsel of the National Labor Relations
Board,' by the Regional Director for the Fifth Region (Baltimore, Maryland),
issued a complaint dated February 7, 1951,. against Gittlin Bag Company, d/b/a
Gittlin Charlotte Bag Company, 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.
With respect to unfair labor practices, the complaint alleged in substance that
the Respondent violated Section 8 (a) (5) and (1) of the Act by refusing,' since
on or about January 19, 1950, to bargain with the Union as the representative
of all employees in the bargaining unit theretofore determined by the Board to
be appropriate. In its answer, the Respondent denied the allegations of the com-
plaint with respect to unfair labor practices, and as a separate defense alleged
that the Union did not represent a majority after April 5, 1950, that the Respond-
ent bargained collectively until the Union filed unfair labor practice charges and
broke off negotiations, that prior to issuance of the complaint herein the Union
failed to submit evidence of continued majority status although afforded an op-
portunity to do so, and that the Respondent petitioned the Board for an election,
which petition was denied.
Pursuant to notice, a hearing was held at Atlanta, Georgia, on April 19, 1951,
before the undersigned Trial Examiner duly designated by the Chief Trial
Examiner. General Counsel and the Respondent were represented by counsel,
and the Union appeared by its representative. All parties were afforded full
opportunity to be'heard, to examine and-"cross-examine witnesses, and to intro-
duce evidence bearing upon the issues.
The Respondent moved to dismiss the complaint at the conclusion of General
Counsel's case-in-chief; the motion was denied. It was renewed at the close
of the hearing ; decision was at that time reserved, and the motion is now
disposed of in accordance with the conclusions and recommendations below.
'The General Counsel and his representative at the hearing are herein referred to as
the General Counsel , and the National Labor Relations Board as the Board.
GITTLIN CHARLOTTE BAG COMPANY 1163
General Counsel's motion at the conclusion of the hearing to conform names
and dates in the pleadings to the proof was granted without objection. All of
the parties were heard in oral argument at the close of the hearing. Pursuant
to leave granted to all parties, a brief was thereafter filed by the Respondent.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
It was stipulated that the Respondent, a New Jersey corporation, manufac-
tures burlap bags and renovates cotton and burlap bags at its plant in Charlotte,
North Carolina. During the 12 months immediately preceding the hearing,
the Respondent purchased cotton and burlap bags valued at more than $50,000,
approximately 80 percent of which was purchased and shipped to said plant
from points outside the State of North Carolina. During the same period, the
Respondent sold finished products valued at more than $50,000, approximately
80 percent of which was sold and shipped from the plant to points outside the
State of North Carolina. The Board had previously assumed jurisdiction over
the Respondent?
It was admitted that the undersigned finds that the Respondent is engaged in
commerce within the meaning of the Act.
IL THE LABOR ORGANIZATION INVOLVED
It was admitted and it is found that American Federation of Labor is a labor
organization and admits to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
It was admitted that all production and maintenance employees at the Re-
spondent's plant in Charlotte, excluding office workers, foremen, and all other
supervisors, constitute an appropriate unit for collective bargaining, and that
after an election conducted by the Board on April 4, 1950, the Board on April
12, 1950, certified the Union pursuant to Section 9 (a) of the Act as collective
bargaining representative for all employees in the unit.
There was further substantial agreement with respect to subsequent events,
leaving-for resolution the ultiniate findings and conclusions. Mr. Joseph Jacobs,
the Union's representative, first got in touch with Mr. I. T. Cohen, an attorney
who at that time represented the Respondent, in June or July 1949. On Sep-
tember 26, and before they had gotten together to negotiate a contract, Cohen
notified Jacobs that the Respondent expected to close its business in January
because of the changes in the wage-hour law ; Jacobs replied that the Union
would not seek a contract under such circumstances. No finding will be based
on these events; they are here adverted to only to explain the delay in negotia-
tions and to lead up to events which transpired after January 18, 1950.
Jacobs checked after the first of the year and found that operations were
continuing. Not until March, was^.he able to reach Cohen, who, it appears, is
very busy and whose business takes him throughout the country. An appoint-
ment was made to meet on March 9, at which time Jacobs was to and did
submit a proposed contract. In a section-by-section discussion, Jacobs and
Cohen agreed on-various items without change and on changes with respect
2 Case No. 34-RC-112.
1164 DECISIONS' OF' NATIONAL LABOR RELATIONS BOARD
to the others. At the conclusion of the session, Jacobs undertook to retype the
memorandum as agreed upon and to submit it to Cohen, who was to try to
obtain the Respondent's signature. The memorandum was within a short time
prepared and forwarded to Cohen.
After more than half a dozen communications, over the telephone 'niid in
writing, between Jacobs and Cohen and attempts by Jacobs to communicate with
him, Cohen on May 19 stated that his client was still talking of closing the
plant, and that in any event he wanted several slight changes made in the
proposed agreement. Cohen was to redraft and mail the instrument to Jacobs.
The negotiators met again on June 8, and agreement was reached on the
various changes proposed by the Respondent. Prior to his last concession,
Jacobs was assured by Cohen that the item then under consideration was
"the only thing between" them ; Cohen then declared that the agreement was
definite, and represented that his client would sign it. Jacobs was thereafter
again unable to reach Cohen, who left word for him that his principal, Mr. A. S.
Gittlin, was out of the country. On June 28, Jacobs advised Cohen by letter of
his intention to file unfair labor practice charges against the Respondent based
on refusal to bargain. Two days later, over a telephone, Cohen urged Jacobs
to defer action, said that it was only a matter of time, and promised to write
to Gittlin and urge him to sign the agreement.
On July 11, Jacobs was advised that Gittlin had written that there were
many elements to digest in the proposed agreement, that he wanted to see if a
more equitable arrangement could be- worked out, and that he wanted to confer
further with Cohen. The charge herein was thereupon filed. Some 4 months
later, a letter was written to Jacobs on behalf of the Respondent in which the
Union's majority was questioned and in which it was suggested that the Union
"present the membership records" for the purpose of a payroll check. Simul-
taneously with this letter, the Respondent filed a petition with the Board for
an election to determine representation.3
"A union's representative status is conclusively presumed for a reasonable
period of time, customarily 1 year after certification, and indefinitely thereafter
until such status in shown to have ceased."' In fact, bargaining collectively
with the Union until charges were filed on July 19, 1950, without raising the
question, the Respondent in.effect.has conceded the Union's majority status until
that date 5 The issue is therefore .whether the Respondent refused to bargain
in good faith; it was under legal obligation to do so at least until July 19.
A later offer to bargain, conditioned on proof of majority, does not nullify or
compensate for such a refusal. Furthermore, an unfair labor practice so com-
mitted might itself reasonably result in loss of majority status. Therefore,
whether the Union in fact thereafter represented a majority of the employees in
the unit is immaterial ; the Respondent cannot take advantage of its violation, if
such be found, to claim that the majority has been lost'
During the course of the negotiations, the Union's representative made many
concessions, first to achieve the tentative agreement which was submitted for Gitt-
lin's approval, and then as it accepted all of his proposed changes and embodied
them in the second document which was transmitted to him. It is well settled
.that assent and sponsorship of proposals, followed by retraction after the other
side expresses agreement, indicate lack of good faith'
8 34-RM-16.
4 United States Gypsum Company, 90 NLRB 964; Dorsey Trailers, Inc., 80 NLRB 478.
" Dorsey Trailers, Inc., supra.
G 'West Temas Utilities Company , Inc., 85 NLRB 1396.
+Franklin Hosiery Mills, Inc., 83 NLRB 276. .
GITTLIN CHARLOTTE BAG COMPANY 1165
Jacobs stated his own satisfaction that Cohen had himself proceeded in good
faith. As the latter declared, he had ironed out the various questions as far as
he understood his client's problems. In fact, he had gone further in transmitting
the client's own understanding and wishes and obtaining the Union' s agreement.
But the attitude of his client, as, manifested by Gittlin, was clearly different.
The latter was prepared to let Cohen negotiate a outrance. In the letter referred
to on July 11, Gittlin referred only to a "more equitable arrangement" ; he did not
point. out any specific objections to the agreement which he had previously
endorsed. His expressed desire to confer further with Cohen is also enlightening :
Even at that late date he would see, not Jacobs, who was negotiating for and com-
mitting the Union, but Cohen, to whom Gittlin himself had denied authority to
bind the Respondent and with whom he was playing fast and loose.
To play ducks and drakes with the bargaining process is to make game of the
Act. The Respondent's bad faith is clearly established as in existence on July 11,
1950, when Gittlin's statement was transmitted to Jacobs. It is found that since
that date the Respondent has wrongfully refused to. bargain with the Union as
exclusive representative of all employees in the unit described above.
Under the circumstances, it is unnecessary to consider the question whether the
frequent unavailability of the Respondent's apparently sole officer with authority
to bind it and of its negotiating representative, with the consequent delay at each
step in the negotiations indicated lack of good faith.
The Respondent's contention to the contrary notwithstanding, the filing of
..charges did not relieve it of its obligation to bargain.' As for the RM petition;°
that could not erase the effect of prior unfair labor practices, and it was dis-
missed. Nor does such petition indicate that the Respondent had bargained in
good faith.'0
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 comterce
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 certain unfair
labor practices affecting commerce, it will be recommended that it cease and
desist therefrom and take certain affirmative action in order to effectuate the
policies of the Act.
It has been found that the Respondent has refused to bargain collectively
with the Union thereby interfering with, restraining, and coercing its employees.
It will therefore be recommended that the Respondent cease and desist therefrom
and from any like or related conduct, and also, upon request, bargain collectively
with the Union with respect to wages, hours, and other terms and conditions of
employment, and embody in a signed agreement any understanding reached.
8 Atlanta Broadcasting Company, 90 NLRB 808.
° Footnote 3, supra.
10 The undersigned rejected the Respondent's exhibit offered to show that of 80 present
employees , only 41 were employed when the election was held in April 1949 . "There is
no certainty .. . that the employees hired . . . were not union adherents or that
formerly antiunion employees had not changed their attitude toward the Union."
(West Fork Cut Glass Company, 90 NLRB 944.)
.1166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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. American Federation of Labor is a labor organization within the meaning
of Section 2 (5) of the Act.
2. All production and maintenance employees at the Respondent's plant in
Charlotte, North Carolina, excluding office workers, foremen, and all other super-
visors, 'constitute a unit appropriate for the purpose of collective bargaining
within the meaning of Section 9 (b) of the Act.
3. American Federation of Labor was, on April 4, 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.
4. By refusing to bargain collectively with American Federation of Labor as
the exclusive bargaining representative of the employees.in the appropriate unit,
the Respondent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (a) (5) of the Act.
5. By such refusal to bargain, thereby interfering with, restraining, and
coercing its employees in the exercise-of rights guaranteed in SectionK7 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 volume.]
CHARBONNEAU PACKING CORPORATION and FRUIT AND VEGETABLE
PACKERS AND WAREHOUSEMEN'S UNION, LOCAL UNION No. 760 , INTER-
NATIONAL BROTHERHOOD OF TEAMSTERS , CHAUFFEURS , WAREHOUSE-
MEN AND HELPERS OF AMERICA, AFL. Case No. 19-CA-279.
August 00, 1951
Decision and Order
On April 16, 1951, Trial-Examiner Charles L.'Ferguson,'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 therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. The Trial Examiner also found
that the Respondent had not engaged in certain other unfair labor
practices, and recommended that those allegations of the complaint
be dismissed. Thereafter, the Respondent filed exceptions-. to the
Intermediate Report -arid a brief in support of its exceptions.
The Board' has reviewed the rulings made by the Trial Examiner
' 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 Houston and Reynolds].
95 NLRB No. 157.