20th Century Glove Co., Inc.

National Labor Relations Board - Board Decisions

Jun 22, 1967

165 N.L.R.B. 781 (N.L.R.B. 1967)

20th CENTURY GLOVE COMPANY, INC.
20th Century Glove Company , Inc. and
Amalgamated Clothing Workers of America,
AFL-CIO. Case 10-CA-6753
June 22, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND BROWN
On March 27, 1967, Trial Examiner Lloyd
Buchanan issued his Decision 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 attached Trial Examiner's Decision.
Thereafter, the General Counsel, Respondent, and
Charging Party filed exceptions to the Decision and
supporting briefs.
Pursuant 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 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 Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner, with the following modifications.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner and
hereby orders that Respondent 20th Century Glove
Company, Inc., its officers, agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner's Recommended Order, as herein
modified:
1. Delete 1(a) and substitute the following:
"(a) Interfering with, restraining, or coercing
employees by announcement or grant of benefits
prior to the expiration of the time for the Union to file
objections to the election."
2. Delete the first indented paragraph of the notice
and substitute the following:
WE WILL NOT interfere with, restrain, or
coerce employees by announcement or
grant of benefits prior to the expiration of
the time for said Union-Amalgamated
Clothing Workers of America-to file
objections to election.
IT IS FURTHER ORDERED that the complaint be,
781
and is hereby, dismissed insofar as its alleges
violations of the Act not herein found.
i The Trial Examiner found that the Respondent violated
Section 8 (a)(1) of the Act when on September 2, 1966, it promised
employees benefits if they rejected the Union. The Trial
Examiner 's finding is predicated on an alleged admission of
liability by Respondent 's counsel at the time of the hearing We
have searched the record carefully for evidence to support a
finding of an admission of liability At best, the evidence merely
tends to show that Respondent admitted that on September 2,
1966, it informed its employees of the newly amended Fair Labor
Standards Act and how it applied to them Neither in its pleading
nor in the discussion before the Trial Examiner did Respondent
admit that the statement in question amounted to a promise of
benefits in violation of Section 8(a)(1) of the Act Even if the
information related to the employees could be considered a
promise of a wage increase, such promise to pay a wage increase
required by a Federal statute is not a promise which interferes
with, restrains , or coerces employees in the exercise of their
statutory rights in violation of Section 8(a)(1) of the Act Crown
Laundry & Dry Cleaners Inc , 160 NLRB 746, 755 (TXD) We find,
contrary to the Trial Examiner , that the Respondent 's conduct in
that regard did not violate the Act . The announcement or grant of
benefits after the election , which the Trial Examiner also found
violative of the Act, stands on a different footing Accordingly, we
shall dismiss the complaint insofar as it alleges violations of the
Act not herein found
TRIAL EXAMINER'S DECISION
LLOYD BUCHANAN, Trial Examiner: The complaint
herein (issued January 10, 1967; charge filed
November 14, 1966) alleges that the Company has violated
Section 8(a)(1) of the National Labor Relations Act, as
amended, 73 Stat. 519, by promising wage increases if the
employees rejected the Union in the then scheduled Board
election, by promising employees that it would pay them
for time lost while they were attending a company-called
preelection meeting at that time and at three earlier
meetings, and by unilaterally announcing, on the day after
the election but before the Union's objections to election
thereafter sustained were filed, and granting a piecework
increase, a wage increase, and two additional paid
holidays; and Section 8(a)(5) of the Act by said acts and by
refusing to bargain collectively with the Union as the
exclusive bargaining agent of the employees in an
appropriate unit . The answer, admitting the
appropriateness of the unit , denies the Union's majority,
alleges a good-faith doubt and that it communicated that to
the Union and, while after further probing' at the hearing
it admitted as indicated infra the facts alleged to show
interference and refusal to bargain , denies that any
violation of either section of the Act is to be inferred.
A hearing was held before me at Cartersville, Georgia,
on February 14, 1967. Briefs have been filed by the
General Counsel, the Union, and the Company.
Upon the entire record in the case including stipulations
and statements by counsel, no witnesses having been
called, I make the following:
i What threatened to become a lengthy hearing , as a roomful of
witnesses were present and the Company declared its intention to
explore fully the circumstances under which virtually each card
had been signed , was thus quickly closed on the pleadings and the
statements of counsel, and without calling any witnesses.
165 NLRB No. 122
782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACTS (WITH REASONS THEREFOR) AND
CONCLUSIONS OF LAW
1. THE COMPANY'S BUSINESS AND THE LABOR
ORGANIZATION INVOLVED
The facts concerning the Company' s status as a Georgia
corporation, the nature and extent of its business, and its
engagement in commerce within the meaning of the Act
are admitted; I find and conclude accordingly. I also find
and conclude that, as admitted, the Union is a labor
organization within the meaning of the Act.
II. THE UNFAIR LABOR PRACTICES
A. The Alleged Independent Violation of Section 8(a)(1)
As submitted at the hearing for decision and on the
issue of remedy, it is admitted that on or about
September 2, 1966, 4 weeks after the Company refused to
bargain with the Union, as noted below, the plant manager
promised wage increases to the employees if the Union
were rejected at the election scheduled for September 23;
at a meeting on or about September 22, without condition
or reference to the outcome of the election, he promised
the employees in the unit that the Company would credit
them for the time lost in attendance at that meeting and
also at three earlier meetings called by the Company, and
that such credits were thereafter allowed; and on
September 26, the day after the election, the Company did
unilaterally announce and grant the increases and holidays
as alleged although the Union within a few days thereafter
timely filed objections to the election which were later
sustained by the Regional Director.
Of these acts, I regard as most serious, for its tendency
to interfere with the employees' free exercise of their
rights under the Act, the September 2 promise of a wage
increase. I find and conclude that this promise constituted
interference within the meaning of Section 8(a)(1).
The September 22 promise was made some 25 hours
before the election, and it is not claimed that it violated the
Peerless Plywood 24-hour rule. Nor does the General
Counsel separately or particularly question the lawfulness
of the promise and payment with respect to the
September 22 meeting, when the promise was made, as
distinguished from the earlier meetings. He does claim
that the announcement at that time of payment for earlier
meetings was intended to cause the employees to reject
the Union. In short, it is not the benefit but its timing that
is here attacked. The Company's admission of this
promise is coupled with its denial of violative intent or
purpose. Both the General Counsel's allegation of intent
and the Company's denial thereof are irrelevant, a finding
of interference depending on whether the promise tended
to interfere, restrain, or coerce within the meaning of the
Act and regardless of intent.2
The Company's moral obligation, which the Board
recognizes, to pay the employees for time lost at the first
three meetings was as great as that in connection with the
fourth. Although it is recognized that payment for each of
the meetings at or about the time when they were held
1I need not cite authority for this proposition but would
emphasize it since the language used is sometimes loose and
misleading
' 146 NLRB 1520, 1521 See also Northwest Engineering
Company, 148 NLRB 1136, 1145 If the Board, in Champion
Pneumatic Machinery Co., 152 NLRB 300, 306, intended a
modification, it neither so stated nor indicated a basis therefor To
would normally not have been violative, the allegation is
that a promise of payment for all made the day before the
election was violative. Contrariwise, since the promise of
September 22 does not stand alone but is necessarily
joined with the absence of earlier payment or promise, it
might be argued that withholding payment and a promise
thereof on the day before the election tend to antagonize
employees toward their employer and are less apt to
incline them in its favor than would earlier and prompt
payments. The cases cited to me in this connection are
inapposite. I see no sufficient basis for finding an unlawful
tendency per se in the late promise (it may be for the same
reason that the General Counsel and the Union have not
attempted to make this point) as distinguished from the
argument of ulterior purpose in the announcement as an
entirety. I find and conclude that there was no violation
here.
As for the September 26 announcement and grants,
these were not at that time or when they were put into
effect required by the Fair Labor Standards Act cited by
the Company in justification. Although the Company thus
acted after the Union lost the election, objections to the
election had not yet been filed; they were thereafter filed
and sustained. My own reasoning as set forth in the cited
case and the decision of the circuit court of appeals to the
contrary notwithstanding, I am constrained by the Board's
ruling in Ambox, Incorporated' "that Respondent, by
announcing general benefits while objections to an
election were pending, violated Section 8(a)(1) of the Act."
No significant distinction is presented by the fact that the
Company here acted before the objections were in fact
filed.
B. The Alleged Violation of Section 8(a)(5)
The issue in this connection can be summarized as
follows: The Union having obtained a majority of cards;
the Company having in what on its face appeared to be a
good-faith reply refused to bargain but suggested and
agreed to a consent election; the Union having lost the
election by a wide margin and having filed objections
which were sustained by the Regional Director; we are to
determine whether the Company's refusal to bargain was
in bad faith and whether the interference found so affected
the free laboratory conditions for an election as to warrant
an order that the Company bargain with the Union. I
answer both questions in the negative; I cannot answer
either in the affirmative.
As with 8(a)(1), the questions raised by the pleadings
with respect to Section 8(a)(5) were markedly limited by
stipulation and concession at the hearing. There is no
issue concerning the sufficiency of the cards as
designations of the Union insofar as form is concerned. It
now stands admitted that the Union represented a majority
of the 88 employees in the unit on or about August 1, when
it asked the Company to bargain with it. It is also admitted
that the following is an appropriate unit within the
meaning of Section 9(b) of the Act:
All production and maintenance employees at the
Company's Cartersville, Georgia, plant, but excluding all
the extent that, as declared in Ambox, "earlier unlawful conduct"
is to be considered, an earlier promise of benefit was in fact found
in Champion Pneumatic but declared to be isolated If that was to
be overlooked, the Board may do likewise here if it disagrees with
my own appraisal of the seriousness of the promise made on
September 2
20th CENTURY GLOVE COMPANY, INC.
office clerical employees, professional employees, guards,
and supervisors as defined in the Act.
On August 1, the Union wrote to the Company and
requested that it be recognized and bargained with, and on
August 2 it filed a representation petition with the Board.4
By letter dated August 5 the Company replied that it
entertained "serious and well-founded doubts" that the
Union represented a majority, declined to recognize the
Union, and mentioned the possibility of a consent election.
A consent-election agreement was entered into on
August 23, and in the election conducted by the Board on
September 23 the tally indicated that of 76 eligible voters,
21 voted for the Union and 45 against. The Union filed
timely objections on September 30, and the Regional
Director sustained the objections and directed a second
election, which has not yet been held.
The issue of violative refusal to bargain depends on
whether the employer had a good-faith doubt of majority as
it claimed. In such a case, the General Counsel undertakes
his burden of proving bad faith by demonstrating, as here,
that the Company has engaged in other unfair labor
practices which tend to dissipate the Union's majority.5
But the Board has indicated in Hammond & Irvings that
this is no per se rule to be applied mechanistically.
We now face the questions whether the election tally
and the Union's loss in the face of its admitted card
majority are ascribable to the preelection interference
found; and whether bad faith in the Company's refusal to
bargain can be posited on the pre- and post-election
interference, or whether the refusal stemmed from an
alleged good-faith doubt at that time.
The first of these questions, in the light of Hammond &
Irving and considering the limited although serious
preelection interference and the wide vote margin against
the Union, is to be answered in the negative. As for good
faith, Joy Silk Mills supports the General Counsel's
argument that later interference may reflect earlier had
faith. Nor within that rule is there necessarily a difference
whether there has been an intervening election; although
within the congeries of circumstances to be considered is
the fact that the vote already taken could not be affected
by the later interference. Weighing all of the facts
including the Company's prompt action in suggesting and
agreeing to a consent election, I do not infer earlier bad
faith from the Company' s announcement of September 26
even if underAmbox it is violative of Section 8(a)(1). But a
finding to that effect is unnecessary since, having held that
the lack of majority in the election was not the result of the
earlier interference found, I do find and conclude, giving
weight to both the pre- and post-election conduct, that the
Company in good faith appraised the situation and in good
faith refused to bargain. Speaking of myself alone, it would
be imprudent (with or without the "r") for me to deny the
employees a full and fair opportunity now to vote freely in
a collective-bargaining election.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law and the entire record in the case, I
recommend that the Company, 20th Century Glove
Company, Inc., Cartersville, Georgia, its officers, agents,
successors, and assigns , shall:
1. Cease and desist from:
(a) Interfering with , restraining , or coercing employees
by promises of benefits if the Union be rejected or by
783
announcement or grant of benefits prior to the expiration
of the time for the Union to file objections to election.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Post at its place of business in Cartersville, Georgia,
copies of the attached notice marked "Appendix."7 Copies
of said notice, to be furnished by the Regional Director for
Region 10, after being duly signed by the Company's
representative, shall be posted by the Company
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to its employees are
customarily posted. Reasonable steps shall be taken by
the Company to insure that said notices are not altered,
defaced, or covered by any other material.
(b) Notify the Regional Director for Region 10, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.8
I FURTHER RECOMMEND that the complaint be
dismissed insofar as it alleges violations of Section 8(a)(5)
of the Act.
Case 10-RC-6790
Joy Silk Mills, Inc, 85 NLRB 1263 , enfd as modified 185
F 2d 732 (C A D C ), cert denied 341 U S 914
' Hammond & Irving, Incorporated , 154 NLRB 1071
In the event that this Recommended Order is adopted by the
Board , the words " a Decision and Order" shall be substituted for
the words "the Recommended Order of a Trial Examiner" in the
notice In the further event that the Board ' s Order is enforced by
a decree of a United States Court of Appeals , the words "a Decree
of the United States Court of Appeals Enforcing an Order" shall
be substituted for the words "a Decision and Order."
8 In the event that this Recommended Order is adopted by the
Board , this provision shall be modified to read "Notify said
Regional Director , in writing , within 10 days from the date of this
Order , what steps Respondent has taken to comply herewith "
APPENDIX
NOTICE To ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner 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 interfere with , restrain , or coerce
employees by promises of benefits if they reject
Amalgamated Clothing Workers of America,
AFL-CIO, or by announcement or grant of benefits
prior to the expiration of the time for said Union to file
objections to election.
WE WILL NOT in any like or related manner
interfere with, restrain , or coerce employees in the
exercise of the right to self-organization , to form labor
organizations, to join or assist Amalgamated Clothing
Workers of America, AFL-CIO , or any other labor
organization , to bargain collectively through
representatives of their own choosing, and to engage
in other concerted activities for the purpose of
collective bargaining or other mutual aid or
protection , or to refrain from any or all such activities.
All of our employees are free to become or remain, or to
refrain from becoming or remaining, members of
784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Amalgamated Clothing Workers of America , AFL-CIO, or This notice must remain posted for 60 consecutive days
any other labor organization . from the date of posting and must not be altered, defaced,
20TH CENTuRY GLOVE
or covered by any other material.
COMPANY , INC.
If employees have any question concerning this notice
or compliance with its provisions , they may communicate(Emp loyer) directly with the Board's Regional Office, 528 Peachtree-
Dated By Seventh Building, 50 Seventh Street, N.E., Atlanta,
(Representative ) (Title ) Georgia 30323, Telephone 526-5760.